FEDERAL COURT OF AUSTRALIA

BZADA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL [2013] FCA 1062

THE COURT ORDERS THAT:

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

2.    The application for an extension of time to seek leave to appeal and the application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

1        The applicant filed an application in the Federal Circuit Court on 4 October 2012 seeking constitutional writs in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 August 2012. The Tribunal had affirmed a decision of a delegate of the first respondent made on 11 May 2012 to refuse to grant the applicant a Protection (Class XA) visa.

2        The applicant failed to appear at the final hearing before the Federal Circuit Court on 28 March 2013. Accordingly, Judge Jarrett made orders dismissing the application with costs. On 13 May 2013, his Honour dismissed an application filed by the applicant seeking to set aside the orders of 28 March 2013: BZADA v Minister for Immigration and Citizenship & Anor [2013] FCCA 791.

3        The applicant now seeks an extension of time to seek leave to appeal and leave to appeal against the judgment of Judge Jarrett given on 13 May 2013. That judgment was an interlocutory one. Therefore, leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant requires an extension of time because the interlocutory judgment was given on 13 May 2013 and r 35.13 of the Federal Court Rules 2011 (Cth) requires any application for leave to appeal be filed within 14 days of the date the judgment was delivered (that is, on or before 27 May 2013). As the present application for leave to appeal was not filed until 12 June 2013, it is 16 days out of time. Rule 35.14 of the Federal Court Rules makes provision for an application for an extension of time to seek leave to appeal.

4        The applicant is a citizen of India who first arrived in Australia on 5 July 2009 on a student visa. He returned to India on 5 January 2010 and arrived again in Australia on 7 February 2010. He lodged his application for a protection visa on 16 December 2011.

5        The applicant claimed to fear harm from the Indian authorities because of his affiliation with the All India Sikh Student Federation. He also claimed that his father borrowed money at a high rate of interest from a money lender in India to finance the applicant’s travel to and study in Australia and that he was later pursued and threatened by the money lender over his father’s debt.

6        The Minister’s delegate made a decision on 11 May 2012 to refuse the grant of a protection visa to the applicant and on 8 June 2012 the applicant lodged an application for review to the Tribunal.

7        On 19 July 2012, the Tribunal sent an invitation to the applicant to attend a hearing on 29 August 2012. The hearing invitation informed the applicant that the Tribunal was unable to make a favourable decision on the basis of the information before it and that if he did not attend the hearing, then the Tribunal might make a decision without further notice. The letter was not returned to the Tribunal as unclaimed and the applicant did not appear at the scheduled hearing or contact the Tribunal about his non-attendance. In these circumstances, the Tribunal was empowered by s 426A of the Migration Act 1958 (Cth) to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal considered the applicant’s claim for protection but found that “without the benefit of a hearing”, it was unable to be satisfied that the events claimed by the applicant had occurred or that they had a requisite nexus with the convention.

8        The Tribunal found that “after considering all the evidence”, it was unable to be satisfied that the applicant faced a real chance of serious harm in the reasonably foreseeable future for a convention reason. Accordingly, it was not satisfied that his fear of persecution was well-founded. The Tribunal also found that without the benefit of a hearing, it was unable to be satisfied that if the applicant were removed from Australia to India, there would be a real risk that he would suffer significant harm. Accordingly, the Tribunal found that it was also unable to be satisfied that he met the complementary protection criterion in s 36(2)(aa) of the Migration Act.

9        On 4 October 2012, the applicant filed his application in the Federal Circuit Court seeking the issue of constitutional writs in respect of the Tribunal’s decision.

10        The application was filed outside the 35 day period prescribed in s 477(1) of the Migration Act and was therefore incompetent unless the court extended time pursuant to s 477(2) because it was necessary in the interests of the administration of justice to do so. The applicant did not attend the final hearing scheduled for 28 March 2013 and Judge Jarrett dismissed the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

11        In considering the application to set aside the orders made on 28 March 2013, his Honour had regard to three well established considerations for such applications, namely:

(a)    whether the applicant had explained his previous failure to appear;

(b)    whether the applicant had explained his delay in bringing the application to set aside the previous orders; and

(c)    whether there was any utility or purpose in setting aside the orders, having regard to the merits of the principal application.

12        In relation to the first consideration, Judge Jarrett noted that the applicant had provided inconsistent explanations for his failure to attend court on 28 March 2013. In an affidavit, the applicant stated that he had mistakenly thought the hearing was on 28 April 2013. However, in oral submissions he suggested that he was, in fact, present at court on 28 March 2013 but was late. His Honour noted that there was a delay of about one month between the filing of the application to set aside the previous orders and the date of the previous orders. His Honour did not consider that this delay would disentitle the applicant to any relief that he otherwise ought to be granted.

13        His Honour then turned to the merits of the primary application, outlining the procedural history of the applicant’s protection visa application, focusing in particular on the grounds of review in the principal application to assess whether there was any purpose or utility in setting aside the dismissal orders made on 28 March 2013. His Honour considered that the applicant’s grounds of review had “very little merit”.

14        The applicant’s first ground was:

The second respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party, the Tribunal inadvertently failed to discharge its statutory duty. By consequences, the Tribunal decision is not a decision at all in law.

15        His Honour held that the applicant’s complaint was misconceived because the statutory regime established by the Migration Act and the Migration Regulations 1994 (Cth) did not require actual receipt of the invitation by the applicant. His Honour’s approach reveals no error. The authorities are clear that the reason for non-attendance at a hearing does not matter. If there is compliance with ss 425 and 425A of the Migration Act, the Tribunal may proceed under s 426A to consider and decide the matter without conducting any further inquiries. In these circumstances, the Tribunal was not obliged to issue an additional invitation to attend a hearing and was entitled to proceed to decide the application as it did when the applicant did not attend his scheduled hearing.

16        The applicant’s second ground was:

My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing. It became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me, written, to make my comments, in order for fully compliance of section 424A.

17        Judge Jarrett held, for essentially the same reasons, that the applicant’s second ground had no merit. The Tribunal had no obligation to make additional attempts to contact the applicant when he failed to attend his hearing after being validly invited. His Honour also correctly found that the applicant’s further complaint that the Tribunal was required to send him a letter pursuant to s 424A of the Migration Act was without merit. Again, these findings reveal no error. The legislative requirements for a valid invitation had been met. Further, the information upon which the Tribunal based its decision did not engage any obligations under s 424A.

18        The applicant’s third ground was:

Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of refugee status, and therefore there was a denial of natural justice.

19        Judge Jarrett’s rejection of the applicant’s complaint that the Tribunal acted unfairly or denied him natural justice reveals no error. As already noted, a statutory power existed for the Tribunal to act in the manner that it did. In addition, this was a case to which s 422B of the Migration Act applied and the Tribunal was not required to afford the applicant common law natural justice. He was only entitled to the procedural rights afforded under Part 7 of the Migration Act and there was no basis to suggest that the Tribunal did not comply with those requirements.

20        The applicant’s final complaint was that:

The Tribunal had no jurisdiction to make said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

21        As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

22        The Tribunal was under no obligation to uncritically accept any or all allegations made by an applicant.

23        The applicant seeks an extension of time to seek leave to appeal pursuant to r 35.14(1) of the Federal Court Rules. The success of his application for an extension of time will depend upon whether he has provided a satisfactory explanation for the delay and whether he can demonstrate that there is a prospect of success in the proposed appeal: Wilson v Alexander (2003) 135 FCR 273.

24        In order for the Court to grant leave to appeal the applicant must satisfy the Court of the cumulative tests set out in Decor Corporation Proprietary Limited v Dart Industries (1991) 33 FCR 397 at 398-399, namely:

(a)    whether, in all the circumstances, the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)    whether substantial injustice would result if leave were refused supposing the decision were wrong.

25        The two considerations are not unrelated. If the proposed appeal is doomed to fail or if no arguable ground of appeal is raised by the applicant, then the application for leave to appeal should not be granted.

26        The applicant’s delay in filing the present application (16 days) is not insubstantial and it is not explained. The applicant has provided no evidence to explain why he did not file this application for leave to appeal within the prescribed 14-day period. He has made no attempt to explain what steps (if any) he took to inform himself of the applicable time limits or the Court’s rules.

27        Critically, the application for an extension of time and leave to appeal filed by the applicant ought to be refused because it is without merit. The application contains the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claim and ignoring the aspect of persecution and harm in terms of sec 91R of the Act. The Tribunal failed to observe the obligation and amounted to a breach of statutory obligation.

2.    The learned FM dismissed the application without considering the legal and factual errors in the decision of the RRT.

28        In relation to the first ground, it is not apparent what aspect of s 91R of the Migration Act the applicant is referring to or what it is that the Tribunal is supposed to have ignored, nor is there any basis for concluding that the Tribunal acted in a manifestly unreasonable way. There was no unreasonableness in the sense of any want of logicality in the Tribunal’s reasoning and the decision was not so unreasonable that no reasonable person could have come to it. Accordingly, the applicant’s description of the Tribunal’s reasons as being “manifestly unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it. That complaint fails to reveal any jurisdictional error on the part of the Tribunal or any error in the reasoning of the primary judge.

29        Contrary to the applicant’s allegation in the second ground, Judge Jarrett’s reasons demonstrate that his Honour gave detailed consideration to the Tribunal’s reasons and findings. His Honour also considered the applicant’s grounds of review and ultimately found that they failed to raise any arguable case of jurisdictional error in the Tribunal’s decision. This ground lacks particulars, is vague and fails to even identify the alleged legal and factual errors in the Tribunal’s decision. To the contrary, his Honour was clearly correct to find that there were no such errors.

30        The applicant’s draft notice of appeal simply repeats the grounds of the application for an extension of time and leave to appeal.

31        As the primary judge concluded that the applicant’s judicial review application lacked merit, it was open to his Honour to exercise his discretion not to set aside his earlier orders. Any appeal to this Court from the decision of Judge Jarrett made on 13 May 2013 would require the applicant to demonstrate that his Honour’s judgment was affected by appealable error. As already noted, the power to set aside orders pursuant to r 16.05 of the Federal Circuit Court Rules is discretionary. In considering the applicant’s prospects on appeal on the assumption that leave might be granted, it would not be enough that this Court might have made a different decision had it been in the position of the primary judge. There is no basis to find that the primary judge erred in the exercise of his discretion to dismiss the application to set aside his earlier orders. The matters considered by Judge Jarrett in the exercise of his Honour’s discretion were relevant to the exercise of discretion under r 16.05(2)(a) of the Federal Circuit Court Rules.

32        The applicant has not explained his delay and the draft grounds of appeal have no prospects of success. For these reasons, the application for an extension of time and the application for leave to appeal will be refused with costs.

Associate:

Dated: