FEDERAL COURT OF AUSTRALIA

BBW15 v Minister for Immigration and Border Protection [2016] FCA 128

ORDERS

THE COURT ORDERS THAT:

1.    The Application for an extension of time and leave to appeal is refused.

2.    The proceeding is otherwise dismissed.

3.    The First and Second Applicants are to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

FLICK J:

1    The First Applicant is a citizen of Indonesia. The Second Applicant is his spouse; the Third, Fourth and Fifth Applicants are their children.

2    The Applicants applied for Protection visas on 22 April 2010. Those applications were rejected in August 2010. Subsequent requests were made to the then Minister for Immigration and Citizenship pursuant to s 417 of the Migration Act 1958 (Cth) (the “Migration Act”). In September 2012 the Applicants lodged a further application for Protection visas. That application was again rejected.

3    An application for review was then lodged with the former Refugee Review Tribunal. In May 2015 the Tribunal affirmed the decision not to grant the Protection visas.

4    An application seeking judicial review of the Tribunal’s decision was then filed with the Federal Circuit Court of Australia. The sole ground of review was there expressed as follows:

The Refugee Review Tribunal decision (1409350) is affected by legal error.

A Registrar of that Court dismissed the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). An application was then made seeking to have that decision of the Registrar set aside. That application was dismissed by a Judge of the Federal Circuit Court on 7 September 2015 in an ex tempore judgment: BBW15 & Ors v Minister for Immigration & Anor [2015] FCCA 2449.

5    An Application for an extension of time and leave to appeal from that decision of the Federal Circuit Court was then filed in this Court on 1 October 2015. An extension of time is required because any application seeking leave to appeal is required to be filed within 14 days: Federal Court Rules 2011 (Cth), r 35.13. Leave to appeal is required because the decision of the Federal Circuit Court Judge is an interlocutory decision: Federal Court of Australia Act 1976 (Cth), s 24(1A).

6    The First Applicant appeared before the Federal Circuit Court and this Court unrepresented. He appeared on his own behalf and on behalf of the other Applicants. In support of the Application made is an affidavit of the First Applicant maintaining that he has “limited English and no knowledge of the legal system and I do not have legal representation” and that he “did not know that I could appeal”.

7    The extension of time is to be refused and the application for leave to appeal is to be dismissed.

The discretionary power to extend time and grant leave

8    This Court unquestionably has a discretionary power to extend the time otherwise prescribed by r 35.13. It also has a discretionary power to grant leave to appeal. The same principles should be applied when considering an application for an extension of time in which to seek leave to appeal and when considering an application for an extension of time pursuant to r 36.05: Mehmood v Attorney-General (Cth) [2013] FCA 406 at [3] to [6], (2013) 141 ALD 339 at 340 to 341 per Foster J.

9    “The discretion to extend time in which to seek leave to appeal, together with the discretion to grant leave to appeal, are both directed to ensuring that justice is done as between the parties”: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [12] per Flick J. See also: Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J. Common to both exercises of discretion is whether or not an applicant seeking an extension of time is seeking to advance a claim for relief which has some apparent merit: e.g., SZTBO v Minister for Immigration and Border Protection [2014] FCA 269 at [28] per Yates J; Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [39] to [48] per Wigney J; Singh v Minister for Immigration and Border Protection [2014] FCA 538 at [6] per Pagone J.

10    The case sought to be advanced by the Applicants, it is respectfully considered, has no merit.

11    No error is exposed in the manner in which the Federal Circuit Court Judge exercised his power to dismiss the proceeding then before that Court. In doing so, the Judge proceeded on two bases, namely:

    a conclusion that the Applicants had failed to attend a hearing on a date which had been previously notified to them and had failed to advance any satisfactory explanation for their failure to do so; and

    a conclusion that there had been a failure to identify any arguable jurisdictional error in the decision of the Tribunal.

12    It is sufficient in the Application which is now before this Court to endorse the conclusion that no jurisdictional error emerges from any reading of the reasons for decision of the Tribunal. The Tribunal (inter alia) noted in its reasons for decision the claim by the First Applicant that he feared his “continued efforts to campaign for Aceh independence will be met with violence and potential loss of life if he returns to Aceh” (at para [23]) but further concluded (in part) that:

    it had “serious concerns” in relation to a document relied upon by the Applicants, namely a Summons referring to the Indonesian Criminal Code, the Summons being issued on 9 November 2009 but referring to a Police Report dated 12 November 2009 (at paras [51] to [52]);

    an explanation provided by the First Applicant with respect to his involvement in a political party in Indonesia was “implausible” (at paras [53] to [55]); and

    the delay of the Applicants in leaving Indonesia was “inconsistent with the first named applicant’s claimed fears for his safety and for his life” (at para [56]).

The Tribunal made adverse findings as to the credit of the First Applicant, expressing these findings in part as follows:

Findings

[67]    Having considered all the first named applicant’s claims and the evidence, the Tribunal is of the view that the first named applicant is not a witness of truth and has fabricated some of his material claims for the purpose of obtaining a Protection visa. The Tribunal finds that the first named applicant is not a credible witness.

There is no self-evident error – be it jurisdictional error or otherwise – in the findings made by the Tribunal or the manner in which it reached its ultimate conclusion that the First Applicant did not satisfy the criterion in s 36(2)(aa) of the Migration Act.

13    Even if error could be exposed in the manner in which the Federal Circuit Court Judge exercised his power to dismiss the proceeding then pending before that Court, and no such error of discretion is apparent, there is little point in granting an extension of time or granting leave to appeal where there is no self-evident error in the conclusions reached by the Tribunal.

CONCLUSIONS

14    The Application for an extension of time and leave to appeal is to be refused. The First and Second Applicants are to pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE:

1.    The Application for an extension of time and leave to appeal is refused.

2.    The proceeding is otherwise dismissed.

3.    The First and Second Applicants are to pay the costs of the First Respondent.

Associate:

Dated:    22 February 2016

SCHEDULE OF PARTIES