FEDERAL COURT OF AUSTRALIA

AZADM v Minister for Immigration and Border Protection [2014] FCA 143

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1.    Introduction

1    This is an application for an extension of time within which to appeal. The application is opposed by the first respondent. The second respondent has filed a submitting appearance, save as to costs.

2    The applicant seeks an extension to enable him to appeal from the orders of the Federal Circuit Court of Australia pronounced on 16 September 2013 and published on 21 October 2013 in AZADM v Minister for Immigration and Citizenship [2013] FCCA 1668 (the Court below). The Court below dismissed his application for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) on 5 March 2013 to affirm the decision made by a delegate of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Minister’s decision was made on 28 September 2012 by an authorised delegate pursuant to s 496 of the Act.

3    The sole proposed ground of appeal is that:

“In decision, Respected Honour dismissed my case. While making judgment respected honour failed to put weight on fact that my life is under threat in India and being a protection visa applicant it is really hard for me to gather evidence from overseas. Everyone is scared to help me as this will bring their lives in trouble.”

4    The applicant did not file written submissions in support of his application although he filed an affidavit affirmed on 9 October 2013 which in substance repeated the proposed ground of appeal. The Minister filed detailed written submissions in support of his contention that the application for an extension of time should be refused on the ground that any appeal would not enjoy sufficient prospects of success.

5    At the hearing of the application for an extension of time, the applicant was unrepresented and was assisted by an interpreter in the Punjabi and English languages. At the conclusion of the hearing, I made orders granting the applicant leave to file supplementary written submissions of no more than three pages in line with the suggestion very properly made by the Minister in the circumstances of this case in order to afford the applicant an opportunity to reply to the Minister’s submissions in a considered manner. The period for filing his supplementary submissions expired with nothing further having been received from the applicant.

2.    Background

6    The applicant is a citizen of India who arrived in Australia on 31 August 2008. He arrived with his then wife who entered Australia on a student visa. The applicant and his wife divorced in December 2011. On 8 August 2012, the applicant applied to the Minister’s Department for a Protection (Class XA) visa. He claimed that if he returned to India, he would be “killed by fanatic Hindus, Sikhs and government officers” because he had become a follower of Dera Sacha Sauda (DSS) and that during a visit to India in 2011, local Sikhs had threatened to kill him unless he ceased being a follower of DSS and made a public apology. He also claimed that the Indian authorities were unwilling or unable to provide him with adequate protection.

7    The Minister’s delegate refused to grant the visa on 28 September 2012, finding that he was not satisfied that the applicant’s claims were credible.

8    The applicant’s application for review to the Tribunal was also rejected on the ground that the Tribunal found his claims to be fabricated. In reaching that decision, the Tribunal had regard in particular to the following matters:

a)    the applicant’s ignorance of the notoriety that the leader of the DSS had acquired in the previous four years as a pop singer;

b)    the applicant’s description of how he became involved with the DSS;

c)    the applicant’s lack of involvement with anyone in the movement since he has been in Australia;

d)    the inconsistency between the applicant’s written claim that his wife had left him because of his membership of the movement, on the one hand, and his account at the hearing that they had parted because of disagreements, an argument over a bank account and she had found another man, on the other hand;

e)    the timing of the application for a protection visa; and

f)    the applicant’s failure to mention his claims in his appeal to the Minister when he sought Ministerial intervention following the termination of his visa.

9    The Tribunal concluded at [104] of its reasons that the applicant had concocted his claims at the eleventh hour solely for the purposes of obtaining a visa to remain in Australia. As such, the Tribunal found that the applicant did not satisfy the criteria for a protection visa under s 36(2)(a) of the Act as he did not have a well-founded fear of persecution for the purposes of the Refugees Convention; nor was he a person to whom Australia owed complementary protection obligations under s 36(2)(aa).

10    The applicant applied for judicial review pursuant to s 476 of the Act to the Federal Circuit Court of Australia. That application was dismissed on the basis that each of the grounds alleged took issue with the factual findings of the Tribunal which were beyond the jurisdiction of the Court to review.

3.    Adjournment application

11    During the course of the hearing, the applicant made an oral application for an adjournment. He submitted that the adjournment would provide him with additional time within which he proposed to compile additional documentation to bring before the Court.

12    The Minister opposed the grant of an adjournment on the basis that the additional material sought to be adduced was not directed towards demonstrating that the Tribunal’s decision was tainted by jurisdictional error. The Minister also submitted that the applicant had already been provided with sufficient time to adduce any such material, if he had so wished, and had not sought any adjournment prior to the hearing of the application for an extension of time. Nor had the applicant given the Court any explanation as to why the additional material could not have been provided before the hearing. In this regard, counsel for the Minister referred to the hearing before the Registrar on 17 October 2013 where orders were made setting a timetable for the preparation and hearing of the application for an extension of time, including the filing of a draft notice of appeal, written submissions and a reply. It is apparent from the Court File that the Court wrote to the applicant on 17 October 2013 enclosing a copy of the Registrar’s orders and notified him that his application would be heard during the sitting period 10 February-7 March 2014. It was further noted at the hearing before me that the applicant was sent a second letter by the Court on 26 November 2013 notifying him of the date on which the application for the extension of time was listed for hearing.

13    In explaining his delay in applying for an adjournment, the applicant submitted that he was not previously aware that he could avail himself of any opportunity to apply for an adjournment. While the applicant was unable to provide the Court with particulars of the proposed additional material that he wished to compile, it was clear from the applicant’s submissions that any such documentation would be relevant only to supporting the factual claims on which he had relied in support of his application for a protection visa, rather than directed towards identifying error in the decision of the Court below.

14    In these circumstances, I refused to grant an adjournment. As I indicated at the hearing, my primary reason for refusing that application was that it was apparent from his submissions that the applicant sought additional time to compile documents which would be directed only towards the merits of his claim for a protection visa. As it is beyond the jurisdiction of this Court and the Court below to consider the merits of his claims, I did not consider that the further material could bear upon whether the applicant should be granted an extension of time within which to appeal. Furthermore, there was no explanation given for the applicant’s delay in collating the materials, as the Minister submitted, and, in particular, as to why the applicant could not have sought to tender the material in question before the Court below.

4.    Consideration of the application for an extension of time

4.1    The principles by which the application is assessed

15    In the absence of an order extending time, any appeal to the Federal Court from a decision of the Federal Circuit Court of Australia is required to be filed within 21 days under r 36.03 of the Federal Court Rules 2011 (Cth) (formerly O 52 r 15(1)). That rule provides that:

“An appellant must file a notice of appeal:

(a)    within 21 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.”

16    The principles which guide the Court’s discretion in deciding whether or not to grant an extension of time are well established, namely, that the applicant must show an acceptable explanation for the delay; any prejudice to the respondent in defending the proceedings is a material factor militating against the grant of an extension (although the mere absence of prejudice is not sufficient); and the merits of the appeal are to be taken into account: Dunlop v Fishburn (No. 3) [2012] FCA 315 at [9]-[11] (Katzmann J).

4.2    Delay

17    The applicant applied to this Court on 9 October 2013 for an extension of time within which to institute an appeal. As the orders below were pronounced on 16 September 2013, it follows that the 21 day period within which to appeal expired on 7 October 2013 and the application was therefore only two days out of time.

18    The delay, being only two days, is minimal and no prejudice could be suffered by the Minister if the extension were granted, as the Minister accepted. As to the reasons for the delay, the applicant stated in the grounds of the application that:

“I was not aware of leave to appeal process. I went to Immigration and they told me that I have 28 days visa. I came to know about appeal process from my friend and now applying. By the time I came to know about appeal process it was more than 21 days.”

19    However, while the applicant filed an affidavit which in substance repeated his grounds of appeal, he did not depose as to the reasons for the delay in instituting an appeal.

20    Nonetheless, in the circumstances of so short a delay, I do not give any weight to the fact that the applicant has not substantiated those statements by admissible evidence as to the explanation and, in any event, the explanation asserted in the application was not contested by the Minister. In the result, as the Minister properly conceded, the question of whether an extension of time should be granted turns upon whether the proposed appeal has sufficient prospects of success.

4.3    Does the application enjoy sufficient prospects of success?

4.3.1    Overview

21    For the reasons that I set out below, I have reached the view that the proposed appeal would not enjoy any reasonable prospects of success. For this reason, the application for an extension of time should be dismissed.

4.3.2    The proposed ground of appeal

22    The proposed ground of appeal has three elements. First, complaint is made that the primary judge failed to give weight to the fact that the applicant’s life is under threat in India. Secondly, it is said that it is difficult for the applicant to gather evidence from overseas. Thirdly, it is said that everyone is scared to help the applicant as “this will put their lives in trouble.” The third element would seem to be related to the second, being raised as the reason why it is said to be hard for the applicant to gather evidence from overseas, and to relate to persons who are in India and might otherwise have been able to assist the applicant.

23    The first element assumes that the Court below can reconsider the question of whether the applicant’s claims to fear harm if returned to India should be believed. As such, it assumes that jurisdiction to entertain a challenge to the factual findings of the Tribunal is vested in the Court below and equally in this Court on the appeal, insofar as it is suggested that this Court could correct a failure by the Court below to uphold a factual challenge. However, no such jurisdiction is vested in the Court below or in this Court. As I explained in SZSRZ v Minister for Immigration and Border Protection [2014] FCA 106 at [3]:

“…this Court’s jurisdiction on appeal from the Federal Circuit Court of Australia (‘FCCA’) under s 24 of the Federal Court of Australia Act 1976 (Cth) is concerned with the correctness of the decision of the FCCA. The FCCA, in turn, is seized with jurisdiction under s 476 of the Act. That jurisdiction is the same as that vested in the High Court under s 75(v) of the Constitution, and is limited to a consideration only of the legality of the decision by the Tribunal refusing to grant the appellant a visa, that is, whether the decision of the Tribunal is tainted by jurisdictional error. As explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, jurisdictional error in the context of an administrative tribunal such as the Refugee Review Tribunal is established where, for example, the 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 upon 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.’

Accordingly, in contrast to the powers vested in the Tribunal, neither this Court nor the FCCA has power to grant the appellant a visa or to require that a visa be granted, nor otherwise to undertake a review of the merits of the Tribunal’s decision to refuse to grant the appellant a protection visa.”

24    It follows that the first element of the proposed ground of appeal does not raise any arguable ground of appeal.

25    The second and third matters which the proposed ground of appeal appears to raise relate to the applicant’s capacity to lead evidence in support of his claims. While this was not a ground apparently raised below, I have nonetheless considered whether there is any merit in the ground.

26    In addition to the kind of jurisdictional errors identified in Craig v South Australia, quoted above, jurisdictional error is also established by a breach of the rules of procedural fairness including the natural justice hearing rule. That rule requires (to the extent that it is not abrogated or derogated from by statute) that “an opportunity be given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made.”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 256 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Relevantly, in the context of the Act, Division 4 of Part 7 concerns the conduct of review proceedings in the Tribunal and is subject to s 422B of the Act. The effect of that provision is that the natural justice hearing rule at common law does not apply to the kind of information to which the operative procedural requirements in the Division apply: Saeed op cit at 267 [40]-[42].

27    The short point, however, is that there is no suggestion that the inability to obtain evidence from persons in India stemmed from any denial of procedural fairness by the Tribunal. To the contrary, it is attributed to the fear of persons in India of providing evidence in support of the applicant’s claims. Nothing in that complaint indicates that there was any breach of the statutorily prescribed rules of procedural fairness in Division 4 of Part 7 of the Act, nor of any residual requirements of the natural justice hearing rule.

28    I also note in this regard that the applicant was invited to give evidence before the Tribunal in accordance with s 425 of the Act and accepted that invitation. It is apparent from a comparison of the description of the Tribunal hearing which is contained in the Tribunal’s reasons, on the one hand, and the findings made by the Tribunal in its reasons which led it to reject the applicant’s application for a protection visa, on the other hand, that the matters which ultimately led the Tribunal to form an adverse view of the applicant’s credibility and reject his claims were put to him and that he was given an opportunity to respond to them. In this regard, I also note that the reasons of the Court below at [6] explain that, at an interlocutory hearing, both parties were given the opportunity to provide any relevant transcript of the hearing before the Tribunal on which they proposed to rely and the applicant did not take that opportunity. As such, no issue was apparently taken with the description of what occurred at the hearing by the Tribunal which is contained in the Tribunal’s reasons.

4.3.3    No reviewable error otherwise present

29    In any event, it is evident from a reading of the primary decision that no reviewable error is apparent.

30    Three grounds were raised below.

31    First, the applicant took issue with the Tribunal’s findings as to his lack of knowledge of, and contact with, persons within the DSS by seeking to add further information about his involvement. The Court below held that this ground sought to take issue with the factual findings made by the Tribunal, which it was not the function of that Court to review: see reasons below at [13]-[14]. That conclusion is, in my view, plainly correct for the reasons that I have earlier explained.

32    The second ground related to the reliance by the Tribunal upon answers given by the applicant in response to questions directed towards testing his knowledge of certain activities in which the leader of the DSS had engaged, particularly his activities as a pop star over the last four years. The Court below dealt with this contention in detail at [15]-[22] of its reasons and correctly concluded, in my view, that the formulation of questions by the Tribunal at the hearing are matters for the Tribunal as opposed to the Court. As the Court below concluded at [22]:

“It was [as Goldberg J stated in MZYAA v Minister for Immigration and Citizenship [2009] FCA 1303 at [26]-[27]] for the Tribunal to make its question choice, and provided the question choice can be seen to be relevant and it is a question that can rationally relate to an assessment of the credibility or coherence of the account of the applicant’s membership of an organisation, for me to be invited in that context to assess the weight to be given to the applicant’s answers is to be invited to engage in merits review, and … that is not the function of this Court.”

33    The third ground related to factual findings made by the Tribunal regarding the inconsistencies between the applicant’s written submissions as to the reasons why his wife left him, on the one hand, and his oral evidence before the Tribunal, on the other hand. As the Court below considered, the contention appeared to be that the Tribunal had misunderstood or given a distorted interpretation of the applicant’s evidence (at [24]).

34    However, as earlier mentioned, the applicant did not seek to lead any evidence as to what occurred at the Tribunal hearing that took issue with the Tribunal’s description of the hearing, despite the parties having been given the opportunity to lead such evidence at an interlocutory hearing before the trial. As such, the primary judge found there was no evidence before him to indicate that the Tribunal’s finding was otherwise than in accordance with the applicant’s evidence to the Tribunal.

35    Further and more fundamentally, even if there had been a misrepresentation of the evidence, that could not have had any bearing on the matter, as the Court below intimated in its reasons at [24]. The importance of the finding for the Tribunal’s reasons was the absence in the applicant’s oral evidence of any reference to membership of the DSS as being a reason for the separation. No issue was taken with that finding of fact which was not, in any event, open to the Court below to review.

36    Finally, ground four sought only to characterise the three grounds set out above as jurisdictional errors, as the Court below found. It did not raise a further substantive ground. However, for the reasons set out above and in the reasons of the Court below, no jurisdictional error has been established.

5.    Conclusion and orders

37    The application for an extension of time within which to appeal must be dismissed. The applicant is to pay the costs of the first respondent as agreed or as assessed.

Associate:

Dated:    11 March 2014