FEDERAL COURT OF AUSTRALIA

SZVGN v Minister for Immigration and Border Protection [2015] FCA 860

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 19 May 2015 be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant is a Bangladeshi national who claims to fear serious harm in Bangladesh from certain Islamic organisations. He alleges that, after participating in a protest movement demanding the trial of war criminals in early 2006, members of these organisations assaulted and threatened to kill him and he is afraid that they will carry out those threats if he returns to Bangladesh. He maintains that the authorities cannot protect him and there is nowhere else in the country he can go.

2    The applicant came to Australia on a student visa in August 2006, returned to Bangladesh for about six weeks in 2008, and when his student visa expired he unsuccessfully applied for another. Only after the Migration Review Tribunal dismissed his application to review the Minister’s decision to refuse to grant him a second student visa, by which stage he had been in Australia for more than six years, did he raise with the Minister his purported fears. He applied for a protection visa in May 2013. The Minister could only grant his application if he was satisfied that the applicant met the criteria prescribed by the Migration Act 1958 (Cth) and regulations (s 65). They relevantly included, among other things, that the applicant was a refugee within the meaning of Art 1A of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

3    The Minister (through his delegate) was not satisfied that the applicant met the prescribed criteria. The applicant sought a review in the Refugee Review Tribunal but the Tribunal affirmed the Minister’s decision. He then applied to the Federal Circuit Court to have the Tribunal’s decision set aside but his application was dismissed as unarguable following a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”). In that court, as in this, he was unrepresented.

4    The application before this Court is an application for an extension of time to seek leave to appeal. Leave to appeal is necessary because the decision below was interlocutory: FCCR, r 44.12(2), Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 24(1A). An extension of time is required because the judgment was delivered on 6 February 2015 (although the record of the reasons was not available until 18 February 2015) but the application was not filed until 19 May 2015. Under the Federal Court Rules 2011 (Cth) (“FCR” or “Rules”), unless the Court is persuaded to order otherwise, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order made: FCR, r 35.13

5    The application was accompanied by a brief affidavit to which a draft notice of appeal was annexed.

6    The Court may deal with applications for leave to appeal and for an extension of time with or without an oral hearing (FCA, s 25(2A), FCR r 35.18). The applicant said he wished to have his application dealt with without an oral hearing, a course the Minister did not oppose.

7    The grounds of the application before the primary judge read only (without alteration):

1.    Law Error

2.    Overlooked my real claim.

8    On 2 December 2014 — the first return date for that application — a registrar of the court made orders permitting the applicant to file and serve an amended application giving complete particulars of each ground of review, an option he apparently did not take up. He also ordered him to file and serve by affidavit any additional evidence upon which he wished to rely, together with written submissions. And he set the matter down for a show cause hearing under r 44.12.

9    Rule 44.12(1) of the FCCR is in the following terms:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed––dismiss the application; or

(b)    if it is not satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

10    The draft notice of appeal lists two grounds of appeal (without alteration):

1.    Law error, law couldn’t justice properly.

2.    Procedure did not dealt fairly.

11    The orders the applicant would seek if the application were successful read (again without alteration):

1.    Dismiss the previous decisions and

2.    Order Department of Immigration and Border Protection to withdraw refusal decision.

12    Despite the form of these proposed orders, I presume the applicant would want the Court to allow the appeal and set aside the decision of the primary judge. If he were successful, however, it would not be open to the Court to order the Department to withdraw its decision to refuse to grant him a visa. The most he could hope for is an order that the Federal Circuit Court order him to show cause at a final hearing.

13    The grounds of the application for extension of time were contained in the applicant’s supporting affidavit. They were:

(1)    He did not receive the written reasons for some time.

(2)    Since attending personally on the Federal Circuit Court to collect the reasons, he tried to get “some official help to work through the whole appealing process”, but as he was “in financial hardship”, he simply “wasted a couple of weeks”.

(3)    Then he had to “get into the complicated application forms” but he struggled with the “Language of the law” as English is not his first language and he found it “very hard” to complete the forms. This cost him, he said, “another few weeks”.

(4)    He became sick and depressed for a few days “because of this unfamiliar mental pressure”.

14    The grounds of his leave application were to the same effect.

15    The purpose of a power to extend time is to “do justice between the parties”: Gallo v Dawson [1990] HCA 30; 93 ALR 479. The Court’s discretion is very broad. As with any power conferred by the Rules, however, the power to grant an extension of time must be exercised in the way which best promotes the overarching purpose of its civil procedure provisions — to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: FCA Act, s 37M. The considerations which generally guide the exercise of the Court’s discretion include the length of and explanation for the delay, the prejudice the respondent might experience because of the delay and the merits of the proposed appeal.

16    Ordinarily the Court will not grant leave to appeal unless there is a sufficient doubt about the correctness of the judgment below to warrant its reconsideration on appeal and, on the assumption that the judgment below was wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

17    In the present case, the delay is not insignificant but the Minister does not contend that he has suffered any prejudice. While there is a lack of detail in the applicant’s explanation, I am prepared to accept it. The lack of detail in the draft grounds of appeal, however, is a different matter. Without it, it is difficult to conclude there is any merit in the proposed appeal.

18    No particulars were provided of either ground of the proposed appeal and, despite orders for the filing and service of submissions, the applicant filed none. Thus, the alleged error of law is obscure and the alleged unfair procedure is not identified. It is also entirely unclear who the applicant claims is responsible for these supposed errors. Was it the Tribunal or the primary judge?

19    The only insight into the applicant’s grievances is that provided by the primary judge in her reasons. She referred to two affidavits he had filed, one with his application, on 13 October 2014, the other on 22 December 2014, on the back of the Registrar’s orders. She also referred to some submissions he had filed. None of those documents was provided to this Court.

20    According to the primary judge, in the first of these affidavits, the applicant complained (as her Honour put it) that “the [Tribunal’s] questioning was only around timelines and included dates, weeks, months and numbers that that (sic) needed to be answered exactly and that it was a scary experience for someone.”.

21    After reviewing the Tribunal’s reasons, her Honour concluded that the Tribunal did not only rely on inconsistencies in the applicant’s “timeline”.

22    It appears from her Honour’s reasons that the applicant’s complaint about the questioning process went further. She referred to a grievance about the nature and type of questions he was asked. Her Honour said that to support such a complaint the applicant would need “the evidence in support of the transcript”. I think it highly likely this is a transcription error for “evidence in the form of the transcript”. Her Honour noted that the applicant had not filed the transcript and it is implicit from, if not explicitly stated in, her Honour’s reasons that she did not consider there was anything in the Tribunal’s record to support this aspect of the applicant’s complaint.

23    In the second affidavit, the applicant complained about the Tribunal’s decision to refuse to postpone his hearing on 9 September 2014.

24    Her Honour referred to the evidence presented to the Tribunal to support the adjournment application and the Tribunal’s consideration of it. She concluded that it was open to the Tribunal to decline the adjournment on that evidence. Finally, her Honour considered whether there was anything on the face of the decision record which might indicate that the decision was affected by jurisdictional error and held that no such error was apparent.

25    Consequently, the primary judge was not satisfied that the applicant had an arguable case for the relief claimed or that it would be in the interests of justice to allow the matter to proceed any further.

26    The Tribunal’s decision is “a privative clause decision” within the meaning of s 474 of the Migration Act. That means it could not be set aside unless the applicant was able to point to a jurisdictional error on the part of the Tribunal. The threshold question, then, is whether the primary judge was wrong to conclude that there was not an arguable case for setting aside the Tribunal’s decision for jurisdictional error.

27    It might be inferred from the draft grounds of appeal that the applicant was reviving his complaint about the Tribunal’s decision, rather than making any complaint about the primary judge’s reasons. If I am right in this respect, then it is necessary to consider whether the complaints made about the decision to the primary judge had some foundation.

28    The first of these complaints relates to the refusal of the applicant’s adjournment application. This is presumably picked up by the second ground in the draft notice of appeal. It might also be caught by the first ground. If there was an arguable case that the decision to refuse the application denied him procedural fairness or was legally unreasonable, then the primary judge should not have dismissed the application. Save in certain circumstances which are presently irrelevant, s 425 of the Migration Act imposed a duty on the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. If an applicant is not in a fit state to represent himself or herself before the Tribunal, the invitation extended to an applicant to appear will be a hollow one, the obligation imposed by s 425 will not have been satisfied, and there will have been a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.

29    The adjournment application is dealt within paras 6 and 7 of the Tribunal’s reasons:

On 5 September 2014 [four days before the hearing] the applicant provided to the Tribunal a medical certificate and requested the hearing to be postponed. The Tribunal has considered the applicant’s request but decided not to postpone the hearing. The Tribunal notes that according to the applicant’s own evidence, he had been travelling outside Sydney for a week. It was not until the applicant returned to Sydney and received the hearing invitation that the applicant determined he was too ill to attend the hearing. In the Tribunal’s view, if the applicant’s back pain did not prevent him from travelling, it would equally allow him to participate in a hearing. The Tribunal is also mindful that the medical report from Bay Healthcare does not support the applicant’s claim that he was unable to attend the hearing. The medical report states that the applicant is unfit to continue his usual occupation/school/university. It states nothing about his capacity to participate in a hearing and give oral evidence.

The applicant ultimately advised the Tribunal that he did decide to attend the hearing and he did so on the specified date. The Tribunal is satisfied that he was able to engage in the hearing and present his evidence. The Tribunal is satisfied that the applicant had been given a genuine opportunity to appear before the Tribunal.

30    If the back pain were so severe, for example, that it prevented the applicant from attending the hearing, impaired the applicant’s ability to concentrate, or required him to take medication which had interfered with his capacity to think clearly or which had some other adverse effect on his mental state which meant that he could not participate in a meaningful way in the hearing by giving evidence, presenting arguments and answering the Tribunal’s questions, then there might be a jurisdictional error in refusing to adjourn the hearing. The common law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [18]–[20] (French CJ) applying Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. A failure to grant a reasonable request for an adjournment can amount to procedural unfairness: Li at [48] (Hayne, Kiefel and Bell JJ). Moreover, the decision to refuse to grant an adjournment involves the exercise of a discretion. There is a presumption of law that any discretionary power conferred by statute will be exercised reasonably: Li at [63] (Hayne, Kiefel and Bell JJ). “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ).

31    It is unclear what the Tribunal was referring to by the applicant’s own evidence in the fourth line of the first paragraph of the extract at [29] above. If it was referring to the applicant’s oral evidence at the hearing, this can hardly have been a basis to refuse to adjourn the hearing. If it was a document in the Tribunal’s possession, the document was not identified. On the face of things, there is a flaw in the Tribunal’s reasoning process. The back pain might not have prevented him from travelling because it did not come on until he had returned from his travels. Is that possibility open from the material that was before the Tribunal at the time it decided to refuse the adjournment application? If so, and the Tribunal had refused the adjournment only because it considered that he could participate in a hearing because his back pain did not prevent him from travelling, then this could have raised an arguable case that that decision was legally unreasonable. But this would have required the applicant to file the evidence on his application to the court below, whether the evidence was contained in a document he had sent to the Tribunal or in a recording of the hearing.

32    The Tribunal did not stop there. It also referred to the absence of medical evidence to indicate that the applicant’s back problems prevented him from meaningfully participating at the hearing.

33    In any event, the applicant attended the hearing. The primary judge observed at [21] of her reasons:

There is nothing in the RRT’s decision record to suggest that the applicant made any complaint about his ability to participate meaningfully at the hearing or that his ability to provide evidence was in any way impeded.

34    This observation might have been troubling were it not for her Honour’s reference to the fact that at the directions hearing on 2 December 2014, the applicant had been ordered to file and serve all evidence in support of his application. Since he failed to file any evidence to support a finding that he was unable “to participate meaningfully at the hearing” or that the hearing was “in any way impeded”, her Honour was entitled to rely on the Tribunal’s decision record.

35    Her Honour did not (at least expressly) consider whether the Tribunal’s decision to refuse the adjournment was unreasonable in the legal sense, perhaps because there was nothing in the applicant’s material to indicate that this was his grievance. These circumstances and the reasons given by the Tribunal for declining to postpone the hearing lead me to conclude that any attempt to agitate this issue on appeal would have no reasonable prospect of success.

36    The second of the applicant’s complaints related to the questions the Tribunal asked him. The primary judge did not accept the applicant’s submission to the effect that the Tribunal relied only on inconsistencies in “timeline evidence”. Her Honour noted that the Tribunal was also concerned about the applicant’s delay in seeking protection and its conclusion that he left Bangladesh in order to study, not to escape persecution or because he feared persecution. She also referred to other matters which the Tribunal considered were inconsistent with the applicant’s claim to fear persecution in Bangladesh, in particular, the fact that he returned to Bangladesh in 2008.

37    The Tribunal provided a brief summary of the applicant’s claims at [13] of its reasons. The applicant did not suggest that this summary misrepresented or did not do justice to his case:

The applicant claims, essentially, that his family had connections with the Awami League and that in early 2006 he participated in a protest movement of demanding trial of war criminals. The applicant claims that Jamaat-e-Islami (JEI) and Islami Chhatra Shibir (ICS) started to threaten to kill him for joining the protest, they humiliated him by slapping and kicking him repeatedly several times and threatened to kill him. He believes they are searching for him and he is afraid they would kill him. He returned to Bangladesh in 2008 to see the situation but he was in hiding. The chief of JEI has been found guilty on various charges and these organisations, as well as Hifazat-e-Islam had been attacking people, with innocent people being killed. If he returns to Bangladesh, he would face serious physical harm and would be killed. The government is incapable of protecting him in Chittagong as JEI is ruling the real power and he cannot relocate because of his community ties in the area where they had lived for generations and also because JEI has big network and will find him.

38    The Tribunal pointed to numerous inconsistencies in the applicant’s account. Some of them related to inconsistencies with dates, that is true, but many of them did not. In addition to the matters raised by the primary judge, the Tribunal referred to inconsistencies in the accounts of the number of times he claimed to have been assaulted. Apparently, in his written application he said this had occurred several times but he told the Tribunal he had been beaten up twice. When asked to explain the difference, he suggested there had been a typing error but the Tribunal was unpersuaded, noting that the claim that he had been beaten up several times appeared more than once in the application. The Tribunal also noted that he told the Tribunal he had prepared the application himself and that it was correct and accurate. The Tribunal referred, too, to the inconsistency between the applicant’s account of having gone into hiding a few days after the protest and the fact that he was able to arrange his student visa, “including medical checks, police checks, photos, evidence of English and finance and other requirements”. It also observed that it had taken him a month to leave Bangladesh after having been granted a visa. If the applicant genuinely feared persecution, the Tribunal said, he would have left sooner.

39    The Tribunal considered whether discrepancies or inconsistencies in times when certain events took place (including, how long after the rally the applicant had been attacked) might be attributable to poor memory, as the applicant apparently contended. It said it did not expect him to remember precise dates but he had difficulty identifying the months or the period between events. The Tribunal concluded that this was an indication of his “lack of candour” rather than a reflection of his poor memory.

40    As a result of all the inconsistencies, the Tribunal found that the applicant was not a credible witness and ultimately concluded that he had fabricated all his claims in order to extend his stay in Australia. It did not accept that he had ever been threatened or harmed in any way, that he had been forced to live in hiding, or that he was forced to leave Bangladesh because he feared persecution from any group or groups. Indeed, the Tribunal did not accept that anyone wishes to harm him because of his political opinion or for any other reason or reasons.

41    Like the primary judge, I am unable to discern any jurisdictional error in these reasons or the process by which the Tribunal reached them. In particular, if the summary of the applicant’s claims in the Tribunal’s decision record is correct, and, as I indicated earlier, it has not been challenged, there is no basis for the allegation made in his application to the Federal Circuit Court that his real claims were overlooked. If an applicant is not in a fit state to represent himself or herself before the Tribunal, then the invitation to appear will be a hollow one; the obligation imposed by s 425 will not have been satisfied; and there will have been a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.

42    It follows that I am not satisfied that there is sufficient doubt about the correctness of the judgment below which would warrant its reconsideration on appeal. In those circumstances, I cannot see how substantial injustice would result if leave were refused. Moreover, to extend the time to file an application for leave to appeal where the appeal has no reasonable prospect of success would scarcely be the best way to promote the overarching purpose of the civil procedure provisions of the Rules. As Mortimer J put it in Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [26], “[u]nless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow a matter, not commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success.”.

43    The application should therefore be dismissed. Costs should follow the event.

Associate:    

Dated:    25 September 2015