FEDERAL COURT OF AUSTRALIA

MZADS v Minister for Immigration and Border Protection [2015] FCA 1315

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2.    The application for an extension of time be dismissed for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

3.    The applicant pay the first respondent’s costs of and incidental to the proceeding in this Court.

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

REASONS FOR JUDGMENT

1    The applicant arrived in Australia on a student visa in July 2009. A second student visa was granted in November 2010. The applicant subsequently applied for a skilled graduate visa, which was refused in December 2012. The Migration Review Tribunal affirmed that decision in June 2013.

2    In July 2013, the applicant lodged an application for a Protection (Class XA) visa. In December 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth). On a review of that decision, the Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed the delegate’s decision.

3    The Federal Circuit Court of Australia dismissed a judicial review application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), on the basis that that Court was not satisfied that the applicant had raised any arguable case for the relief sought: MZADS v Minister for Immigration [2015] FCCA 1424 at [23]. A dismissal under r 44.12(1)(a) is interlocutory in nature: see Federal Circuit Court Rules, r 44.12(2). Accordingly, the applicant requires leave to appeal, in order to institute an appeal in this Court: see Federal Court of Australia Act 1976 (Cth), ss 24(1)(d) and (1A).

4    The applicant did not, however, file his application for leave to appeal within 14 days after the date that the Federal Circuit Court made the relevant orders, as required by r 35.13 of the Federal Court Rules 2011 (Cth). Accordingly, the applicant must apply under r 35.14, for an extension of time to seek leave to appeal.

5    There is an application for an extension of time before the Court, as well as an application for leave to appeal, if the extension of time application is successful.

6    The applicant did not file any written submissions prior to the hearing today. The applicant sent an email to the Court this morning in which he wrote:

Hi

Sorry to let u know that I am sick and unable to attend the hearing so I am requesting you to please arrange my hearing on some other day. Please see attached file.

thanks

A medical certificate accompanied the email. This certificate, bearing yesterday’s date, related to yesterday, stating only that the applicant had attended the certifying doctor’s surgery and was “unfit for work on 23/11/2015 to 23/11/2015 inclusive”. No further information was given.

7    The applicant was informed by email this morning that he was required to attend the hearing this afternoon. This was confirmed with him in a subsequent telephone conversation, also this morning. The applicant did not attend the hearing this afternoon when the matter was called on. An inquiry in and around the court failed to identify the applicant.

8    The first respondent, the Minister, filed written submissions prior to the hearing and appeared at the hearing. The Minister made an application this afternoon under r 35.33(1)(a)(i) of the Federal Court Rules to dismiss the application for an extension of time by reason of the applicant’s non-appearance.

9    The applicant is evidently aware of the hearing today. His matter was called on for hearing this afternoon. He was not present, notwithstanding that he had been informed this morning that he was required to attend this afternoon. His application for an adjournment has been refused, there being no sufficient basis for it shown.

10    In the circumstances disclosed, I would dismiss the extension of time application, for non-appearance, under r 35.33(1)(a)(i) of the Federal Court Rules.

11    I am fortified in this decision by the fact that there is no jurisdictional error discernible in the Statement of Decision and Reasons of the Tribunal dated 7 April 2014 and no appellable error apparent in the reasons for judgment of the Federal Circuit Court Judge. As explained hereafter, I would have refused the application for an extension of time on the merits, had it been necessary to do so.

tribunal’s decision

12    The Tribunal affirmed the delegate’s decision in April 2014, on the basis that it did not find the applicant to be a credible witness in relation to his various claims to fear persecution or harm if he were to return to India. Accordingly, it was not satisfied that the applicant met the criteria for a protection visa under s 36 of the Migration Act.

13    Before the Tribunal, the applicant claimed that his father, who ran a non-government organisation (NGO) helping lepers, had been asked by local ‘mukhiyas’ to influence lepers to vote for them. The applicant claimed that, as the lepers did not actually vote for the mukhiyas, the mukhiyas had threatened to harm his father and family, and the applicant feared that the mukiyas, who had links with Naxalites and criminals, would kill him. While the Tribunal apparently accepted that the applicant’s father worked for the NGO, it rejected the rest of the applicant’s claims based on what it described as “inconsistent evidence” and the applicant’s “substantial lack of knowledge”. The Tribunal found the applicant’s claims that his father had been so concerned about the safety of himself and his family as to regularly move around to evade harm from the mukhiyas to be “incongruous” with his father’s “active and public part” in the NGO. The Tribunal also found not credible the applicant’s explanation for delaying his application for a protection visa until 2013, after having applied for a skilled graduate visa in March 2012. The Tribunal held that this delay was an additional reason for rejecting the credibility of the applicant’s claims that his father and his family were of adverse interest to the local mukhiyas. The Tribunal rejected the applicant’s claims that the mukhiyas had threatened his father and his family and that they had been forced to move around to avoid being harmed. The Tribunal found that Naxalites and criminals were not interested in his father and family (including the applicant).

14    The Tribunal also rejected as not credible the applicant’s claim to fear harm from a money lender who, according to the applicant, had lent him a substantial amount of money before coming to Australia and had not been repaid. The Tribunal found it implausible that, if such an amount remained outstanding, the money lender would only have contacted the applicant’s father once in 2010, as claimed, and not in the intervening four years. The Tribunal also considered the applicant’s delay in applying for the protection visa an additional reason for rejecting this claim as not credible.

15    The Tribunal did not accept that the applicant faced any real chance of persecution from anyone in the reasonably foreseeable future for any reason, whether or not on a Convention ground, and decided that the applicant did not satisfy the criterion for the grant of a protection visa under s 36(2)(a) of the Migration Act or the alternative complementary protection criterion for the grant of a protection visa in s 36(2)(aa).

Federal circuit court decision

16    The applicant made a judicial review application to the Federal Circuit Court. The four grounds on which he relied were set out by the Circuit Court Judge in the Judge’s reasons. The first respondent fairly summarised them in his written submissions:

1.    That the Tribunal had failed to understand what the Applicant was saying about the mukhiyas’ relationship with the political parties, and used this as an excuse for not granting him the visa.

2.    That the election date was not a fixed date on the calendar, like Christmas Day, and it was a long time ago, so the Tribunal had used the Applicant’s inability to say when the 2011 election had taken place as a ‘silly excuse’ for not granting the visa.

3.    That the delay in making a claim for protection was due to the Applicant having held a student visa and having applied for a Skilled Migrant visa, and not needing to claim protection until July 2013.

4.    That the NGO website only featured photos of his father at public functions after they had been held, by which time his father had moved on to a different place, thus succeeding in escaping from the mukhiyas.

17    The Circuit Court Judge concluded that these grounds challenged only factual findings. His Honour characterised the grounds as factual contentions, not contentions of law. His Honour concluded that they did not allege any error of law constituting a jurisdictional error and that, in the absence of a claim of jurisdictional error, it could not be said that the applicant had an arguable case for the relief sought. Accordingly, the Federal Circuit Court dismissed the applicant’s judicial review application, with costs.

18    On 6 July 2015, the applicant filed his application for an extension of time and leave to appeal from the Federal Circuit Court decision.

APPLICATION FOR AN EXTENSION OF TIME and LEAVE TO APPEAL

19    The application was accompanied by a short affidavit made by the applicant on 6 July 2015 and a draft notice of appeal.

20    The affidavit stated:

I couldn’t come on time to lodge the application because I was unaware didn’t know that I have to do this within 21 days from my hearing date after I got the letter from Immigration department I came here and knew this, sorry for that and please accept my application thanks so much.

(Errors in original.)

21    The applicant’s draft notice of appeal from the Federal Circuit Court specifies the following grounds of appeal:

(1)    Scared from local Mukhiya of my country and unwilling to go back to my country because if I will go will be killed by local Mukhiya as my father works in an NGO, so because of voting the local Mukhiya has threatened my father to vote for him and ask the [leprosy] people to vote for him as my father works for them otherwise will be killed and as I used to help my father back in my country I have been targeted to but the people who interviewed me in MRT and federal circuit court is not making fair with me to grant the visa to live here and save my life and making excuses like date of election or so.

(2)    I also took a large money from one of the guy in my country when I was coming to Australia for studies and promised him will return back but couldn’t do that because of lack of money so I will be killed by him too as he is a criminal and this is his business like giving money to others and take large interest rate.

(Errors in original.)

22    The orders sought in the draft notice of appeal are (without alteration):

(1)    In the federal circuit court on the judgement it was said that my father works in the NGO because they can see my father photos on the NGO site called “Indian Development Foundation” but not believing that my father has been threatened I don’t understand why as it has been said that it is not an arguable case so they just told the result but Its not been done fair with me as I couldn’t afford my personal lawyer as lack of money. That why I think.

(2)    Therefore I want the court to go through my RRT and rehear my appeal where they have done wrong so it will should be according to the right decision.

23    As already noted, the applicant was in fact required under the Federal Court Rules to seek leave to appeal within 14 days from the date of the Federal Circuit Court’s judgment on 21 May 2015. The applicant filed his application for an extension of time and leave to appeal 32 days after the expiration of that period.

24    The documents filed by the applicant explained his failure to seek leave to appeal within the requisite time on the basis that he did not know about the relevant time limit. Even allowing for the fact that the applicant is self-represented and English is not his first language, this explanation is not compelling. This factor militates against an extension of time, but it is not conclusive of that outcome. The first respondent conceded that prejudice lay “only in the sense of being required to commit resources to dealing with an application to this Court that has no realistic prospects of success”.

25    The fact is that both applications for an extension of time and for leave to appeal require some assessment of the proposed grounds of appeal. An extension of time will not be granted where the prospects of success of an application for leave to appeal are so low that the extension of time would be inutile: see, for example, Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] per Lindgren J and SZUIL v Minister for Immigration and Border Protection [2015] FCA 230 at [22] per Gleeson J. Further, an applicant for leave to appeal against an interlocutory order will ordinarily need to show that: (1) the decision is attended by sufficient doubt to warrant reconsideration, and (2) substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. For present purposes, it may be assumed that an unsuccessful applicant for a protection visa will readily satisfy the second element of this test for leave to appeal. Everything therefore turns on the proposed grounds of appeal.

26    The applicant did not, however, identify any arguable jurisdictional error on the part of the Tribunal or error by the Federal Circuit Court in any of the documents that he filed. Further, the reasons for decision of the Tribunal do not in themselves disclose any arguable jurisdictional error. The Tribunal apparently made its factual findings by reference to the material before it and there is nothing that suggests relevant error.

27    The Tribunal rejected the factual basis for the applicant’s claims to fear persecution or harm on return to India after finding that the applicant was not a credible witness, in relation to his claims concerning the mukhiyas and the money lender. Ordinarily, a finding about credibility is a matter for the Tribunal, unless there is some aspect of such a finding that is indicative of jurisdictional error. There was nothing indicative of jurisdictional error here; and no basis to attribute error to the judgment of the Federal Circuit Court.

28    There is nothing that indicates that the applicant’s leave to appeal application would have any sufficient prospect of success to warrant the grant of an extension of time. Rather, extending time would serve no useful purpose. For the reasons stated, I would refuse the application for an extension of time on the merits, if it was necessary to do so.

29    Since, however, the applicant has failed to appear, in the circumstances disclosed, I would dismiss the extension of time application for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules. The applicant should pay the first respondent’s costs of the proceeding in this Court.

Associate:

Dated:    24 November 2015