FEDERAL COURT OF AUSTRALIA

BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230

THE COURT ORDERS THAT:

1.    The title of the proceeding be amended by substituting “Minister for Immigration and Border Protection” for “Minister for Immigration, Multicultural Affairs and Citizenship”.

2.    The application for an extension of time to seek 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 Magistrates Court on 2 October 2012 seeking constitutional writs in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 September 2012. The Tribunal had affirmed a decision of a delegate of the first respondent 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 8 March 2013. Accordingly, Judge Burnett made orders dismissing the application. On 23 May 2013, his Honour dismissed an application filed by the applicant seeking to set aside the orders of 8 March 2013: BZACZ v Minister for Immigration and Citizenship & Anor [2013] FCCA 1264.

3    The applicant has filed an application in this Court seeking an “extension of time”. I take his application to be an application for an extension of time to seek leave to appeal. The applicant has also filed a notice of appeal against the judgment of Judge Burnett given on 23 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 also requires an extension of time to seek leave to appeal because the interlocutory judgment was given on 23 May 2013 and r 35.13 of the Federal Court Rules 2011 requires that any application for leave to appeal be filed within 14 days of the date on which the judgment was delivered (that is, on or before 6 June 2013). As the present application for leave to appeal was not filed until 22 July 2013, it is 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. The applicant’s prospects in any application for such leave fall to be considered in the context of his application to seek an extension of time.

4    The applicant is a citizen of India who first arrived in Australia on 25 February 2011 on a temporary business visa. He lodged his application for a protection visa on 5 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 asserted that he had participated in demonstrations and other activities such as distributing leaflets and recruiting other young people. He claimed to have been followed and interrogated by government agencies and that government agencies had warned his father about consequences for the applicant. The applicant says he became disturbed and worried about his safety.

6    The Minister’s delegate made a decision on 18 May 2012 refusing to grant a protection visa to the applicant. On 15 June 2012, the applicant lodged an application for review to the Tribunal.

7    On 23 July 2012, the Tribunal sent an invitation to the applicant to attend a hearing on 3 September 2012. The hearing invitation informed the applicant that if he did not attend the hearing, then the Tribunal might make a decision without further notice. The letter was sent to the applicant’s last known address for service and was not returned to the Tribunal as unclaimed. The applicant did not appear at the scheduled hearing or contact the Tribunal about his failure to attend. 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.

8    The Tribunal considered the applicant’s claim for protection but found that it was unable to be satisfied that the events claimed by the applicant had occurred or that they had a requisite nexus with the Refugees Convention. 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 India in the reasonably foreseeable future for a convention reason. Accordingly, it was not satisfied that he had a well-founded fear of persecution for any Convention reason.

9    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 the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act.

10    On 2 October 2012, the applicant filed his application in the Federal Magistrate’s Court (as it was then) seeking the issue of constitutional writs in respect of the Tribunal’s decision.

11    The applicant did not attend the final hearing scheduled for 8 March 2013 and Judge Burnett dismissed the application. The applicant then applied under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 to set aside the order dismissing his application.

12    In considering the application to set aside the orders made on 8 March 2013, his Honour had regard to the well established considerations for such applications, namely:

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

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

13    In relation to the first consideration, Judge Burnett considered that the applicant had provided a satisfactory explanation.

14    His Honour then turned to the merits of the application for judicial review. His Honour outlined the procedural history of the applicant’s protection visa application and focused in particular on the grounds of review in the application for judicial review to assess whether there was any purpose or utility in setting aside the dismissal orders made on 8 March 2013. His Honour considered that the applicant’s grounds of review had “no real prospects of success”.

15    The applicant’s first ground of review was that the Tribunal incorrectly acted on the assumption that he had received its invitation to appear before the Tribunal. He contended that on account of the mistake of the third party, the Tribunal inadvertently failed to discharge its statutory duty. He asserts that the Tribunal’s decision is not a decision at all.

16    His Honour held that the applicant’s complaint was misconceived because the statutory regime did not require that the applicant actually receive the invitation. 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 entitled to proceed to decide the application as it did when the applicant did not attend his scheduled hearing.

17    The applicant’s second ground was that having missed the invitation letter, the Tribunal did not make any other attempt to contact him to request that he attend the hearing. The applicant asserts that such an invitation was necessary for the Tribunal to comply with s 424A.

18    Judge Burnett held, for essentially the same reasons, that the applicant’s second ground had no merit. The information upon which the Tribunal based its decision did not engage any obligations under s 424A.

19    The applicant’s third ground was that unfairness was involved in the failure of the Tribunal to send further communication to substantiate his claim of refugee status.

20    Judge Burnett’s rejection of the applicant’s complaint that the Tribunal acted unfairly reveals no error. As already noted, a statutory power existed for the Tribunal to act in the manner that it did.

21    The applicant’s final ground was that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act.

22    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa because of his failure to attend the hearing and the Tribunal’s inability to test and examine his claims. 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 in order for Australia to owe protection obligations to an applicant. The Tribunal was under no obligation to uncritically accept any or all allegations made by the applicant.

23    The applicant requires 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 at 280.

24    In order for the Court to grant leave to appeal, it is relevant to consider whether the applicant satisfies 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 is not insubstantial and it is not explained. The applicant has provided no evidence to explain why he did not file any 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 to apply for leave to appeal ought to be refused because it is without merit. The draft notice of appeal contains the following grounds:

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

2.    The learned Federal Magistrate dismissed the case without considering the legal and factual errors contained 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 Burnett’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 that the Tribunal’s decision was infected with jurisdictional error. 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    As Judge Burnett 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 Burnett made on 23 May 2013 would require the applicant to demonstrate that his Honour’s judgment was affected by appealable error. 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 Judge Burnett erred in the exercise of his discretion to dismiss the application to set aside his earlier orders. The matters considered by Judge Burnett 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.

31    The applicant has not explained his delay and the draft grounds of appeal have poor prospects of success. For these reasons, the application for an extension of time for leave to appeal will be refused with costs.

Associate:

Dated:    20 November 2013