FEDERAL COURT OF AUSTRALIA

BAO15 v Minister for Immigration and Border Protection [2016] FCA 214

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal is dismissed.

2.    The applicant is to 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

PERRY J:

1.    INTRODUCTION

1    This is an application for an extension of time within which to seek leave to appeal and, if an extension is granted, for leave to appeal, against a decision of the Federal Circuit Court (the Court below) dismissing an application for judicial review at a show cause hearing under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) (the FCC Rules). The applicant had sought judicial review in the Court below of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) to affirm a decision of a delegate of the first respondent (the Minister) not to grant him a protection visa under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). In essence, that subsection provides that a criterion for a protection visa is that the visa applicant is a noncitizen (who is not a refugee) to whom protection obligations are owed because the Minister is satisfied that, if returned, there is a real risk that the non-citizen would suffer significant harm (so-called complementary protection). Significant harm is defined in s 36(2A) to mean, among other things, arbitrary deprivation of life, or subjection to torture or cruel or inhuman treatment or punishment.

2    For the reasons below, I consider that any appeal would have no reasonable prospects of success. Accordingly the application for an extension of time within which to seek leave to appeal must be dismissed.

2.    Background

2.1    The first and second applications for a protection visa and the delegate’s decision

3    The applicant is a citizen of India. He arrived in Australia in December 2008 on a tourist visa and lodged a protection visa application 9 February 2009 (the first protection visa application). That application was refused by a delegate of the Minister on 30 April 2009. The delegate’s decision was affirmed on 24 August 2009 by the Tribunal. The applicant sought judicial review of that decision to the Federal Circuit Court which was dismissed on 4 November 2009.

4    Following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the applicant lodged a second application for protection on 5 August 2013 (the second protection visa application). In SZGIZ, the Full Court of the Federal Court held that s 48A of the Act, which prohibited a failed asylum seeker applicant from lodging a second protection visa application while she or he remained in the migration zone (effectively in Australia), does not prevent a person from making an application for a protection visa based on a criterion which did not form the basis of the first protection visa application. This means that the applicant was not prevented from applying for a protection visa on complementary protection grounds under s 36(2)(aa) because he had earlier applied unsuccessfully for a protection visa on the grounds that he was a refugee under s 36(2)(a).

5    The delegate refused to grant the visa on 22 July 2014.

2.2    The decision of the Tribunal

6    The applicant applied for review of the delegate’s decision and appeared before the Tribunal on 26 May 2015 to give evidence and present arguments. At the hearing, the applicant was accompanied by his registered migration agent and gave evidence with the assistance of an interpreter in the Gujarati and English languages. On the same date, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

7    In its reasons, the Tribunal noted that the issue in the case was whether the applicant was entitled to a protection visa on complementary protection grounds. The Tribunal considered that the other significant issue was the applicant’s “lack of reliability as a witness” (at [7]).

8    The Tribunal summarised the applicant’s claim for protection made in his second protection visa application:

In his August 2013 application, [the applicant] claimed he used to live in Gujarat in India. He cited one address where he began residing in 1978 as the last address he lived at in India before coming to Australia.

[The applicant] claimed he worked as a courier for a firm involved in money exchange. He claimed that in his job he “used to take money to distribute to the clients on behalf of the company”. In this way he indicated that carrying sums of money from one place to another was his usual practice with the company.

[The applicant] said that in 2008, he was in the middle of carrying money from one location to another when he was robbed of the money he was carrying by a “criminal”. He claimed he reported this immediately to the police. He claimed his employers, however, did not believe him and accused him of stealing the money. He said the company, which has connections to criminal gangs, sent thugs to his house to threaten his family, demanding that he return the money or else face dire consequences. He claimed he then left for Australia. He claimed as a result of all of this he would face a “real risk of significant harm” were he to be removed to India: torture, inhuman, cruel and degrading treatment at the hands of members of the powerful criminal gangs” working at the behest of his former employer which, he said, had connections with gangs in Gujarat, his home state, and other states like Rajasthan.

9    The Tribunal then considered what it regarded as inconsistencies in the applicant’s evidence, which the Tribunal put to the applicant at the hearing. The Tribunal concluded at [23] of its reasons:

On the evidence before me, I do not accept that [the applicant] was ever accused of theft by his employer, or was jailed or was intimidated into hiding out in India, or that he worked for a company that was engaged in practices or relationships to which he had any kind of philosophical objection. I find the overwhelming bulk of his claims are a complete invention. I find that he is a completely unreliable witness in the present matter.

10    The Tribunal concluded at [25]-[27] of its reasons with respect to the applicant’s claim for complementary protection that:

For the purposes of assessing these claims under s 36(2)(aa), I find that India is the “receiving country”. However, having considered all of the evidence in this application, so much of it highly inconsistent, I do not accept that any of [the applicant’s] substantive claims are at all truthful. Accordingly, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm.

For these reasons, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that [the applicant] satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criteria in s 36(2).

2.3    The decision of the Federal Circuit Court

11    The applicant sought judicial review of the Tribunal’s decision in the Court below. The grounds of that application were that:

1.    The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

2.     The applicant satisfies the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

12    On 23 July 2015, a Registrar of the Court below made orders fixing the matter for a show cause hearing pursuant to r 44.12 of the FCC rules and making orders for an opportunity for the applicant to file an amended application, affidavit evidence and submissions: reasons below at [3]. No such documents, however, were filed.

13    Rule 44.12(1)(a) of the FCC Rules provides:

(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.

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceedings 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.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

14    On 30 October 2015, the Court below heard and dismissed the applicant’s application pursuant to r 44.12(1)(a) of the FCC Rules, giving its reasons orally at the time.

15    The Court below considered that the first ground of the applicant’s application was “an unparticularised allegation of non-compliance with ss 424A and 424AA” and that no information had been identified that might be said to enliven the obligation under s 424A of the Act. As a consequence, the primary judge concluded that the first ground failed to make out any arguable jurisdictional error.

16    As to the second ground, the Court below noted that the applicant had an earlier application in which his claims under the Refugees Convention had been pursued unsuccessfully and that was not in issue before the Tribunal, which was determining whether the applicant was entitled to protection on the grounds of complementary protection under s 36(2)(aa).

17    Having concluded that the application failed to identify any arguable case, the primary judge held that it was appropriate to exercise the Court’s powers under r 44.12(1)(a) to dismiss the application.

3.    CONSIDERATION

3.1    Relevant principles and the issues for determination

18    The time limit for making an application for leave to appeal is 14 days after judgment below was pronounced or on or before a date fixed by the Court below (rule 35.13, Federal Court Rules 2011 (Cth)). The orders were made in the Court below on 30 October 2015. There having been no other date fixed within which an appeal might be instituted, the time limit for making the application ended on 13 November 2015. Accordingly, as the applicant’s application was filed on 18 November 2015, an extension of five days is required.

19    The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Relevant considerations to deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Accordingly, as the Minister submitted, an assessment of the merits of the applicant’s appeal is relevant both to determining the application to grant an extension of time and, if an extension were granted, to the application for leave to appeal.

20    In support of his application for an extension of time, the applicant gave evidence that:

I filed for judicial review application before the Federal Circuit Court. Honourable Judge dismissed my application on motion date. I have received a decision letter late and I was not aware of the time limit for appeal.

21    While the Minister did not seek to cross-examine the applicant, the Minister initially submitted that the explanation given was deficient. I do not accept that submission in the absence of cross-examination. However, the Minister also submitted that the application for an extension of time should be refused on the ground that the substantive appeal would have no prospects of success and accepted that this was the real issue.

3.2    The applicant’s oral submissions

22    At the hearing of the applications, the applicant made brief oral submissions as to his concern that he would be harmed if returned to India. These submissions took issue only with the Tribunal’s findings of fact. However, as I explained at the hearing, neither this Court nor the Court below has the power to grant a visa or to decide whether a visa should have been granted by the Tribunal on the basis of the evidence. The jurisdiction of the Federal Circuit Court is limited to considering only whether the Tribunal’s decision was made lawfully under the Act including whether the Tribunal acted in a procedurally fair manner, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).   In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am also unable to consider whether on the evidence the applicant satisfies the criteria for the grant of a protection visa.

3.3    The grounds of appeal

23    There were different grounds identified in the application for an extension of time as opposed to the draft notice of appeal annexed to the applicant’s affidavit in support of his applications. It is necessary to consider each of those grounds in turn.

3.3.1    Ground one, application for an extension of time

24    The first ground identified in the application for an extension of time is that:

The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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.

(errors in original.)

25    The Minister submitted that this ground was a pro forma allegation in the sense that it is repeated across other proceedings. In my view, that submission is not relevant. The Court’s duty in the context of this application is to consider whether the grounds identified in this application have any prospect of success in the circumstances of this case. However, it is relevant that this ground and the other grounds fail to engage with the issues before the Tribunal and the grounds on which the Tribunal actually made its decision, even though such deficiencies in the pleadings are not surprising in circumstances where an applicant is unrepresented, does not speak English and is unfamiliar with the Australian legal system.

26    In my view, the ground would have no reasonable prospects of succeeding if the matter were to proceed to an appeal. Section 91R of the Act (which is now repealed) defined persecution for the purposes of determining whether a person has a well-founded fear of persecution for a Refugees Convention reason and was therefore relevant only to a consideration of whether the criterion for a protection visa in s 36(2)(a) was satisfied. However, as I earlier explained at [4] above, the only visa application under consideration by the Tribunal here was the application under s 36(2)(aa) for complementary protection. The question of whether the applicant was entitled to a protection visa under s 36(2)(a) of the Act had been the subject of the first protection visa decision by the Tribunal which had been subject to separate legal challenges which are now finalised.

3.3.2    Ground two, application for an extension of time

27    The second ground identified in the application for an extension of time is that:

The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT.

28    The proposed ground of appeal is expressed as a general ground and identifies no specific error. Essentially the ground would seem to amount to no more than disagreement with the decision of the Court below and the Tribunal. For the reasons earlier given, it is not open to this Court to consider the factual merits of the Tribunal’s decision: see above at [22]. It is the Tribunal which is vested with the power to determine whether or not the applicant satisfies the criteria for a visa.

3.3.3    Ground one, draft notice of appeal

29    In the draft notice of appeal, the applicant raises two proposed grounds. The first ground is that:

The Federal Circuit Court Judge failed to consider that the Tribunal decision was affected by judicial error in that the Tribunal failed to correctly apply the test in s 36(2B)(a) of the Migration Act 1958.

(errors in original.)

30    Section 36(2B)(a) of the Act provides in effect that, if the visa applicant could relocate to an area of the receiving country (relevantly India) where she or he would not be exposed to significant harm, then there is taken not to be a real risk of significant harm for the purposes of a complementary protection claim. The difficulty is that the Tribunal never considered the question of relocation in the applicant’s case because it rejected his claim that there was a real risk that he would suffer significant harm if returned. Nor is this a case where the Tribunal’s reasons demonstrated that it had any doubt about the correctness of its findings which might have required it to address in the alternative the possibility that those findings might be wrong: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). As such, the question of relocation under s 36(2B)(a) did not arise. It follows that the proposed ground does not expose any possible error on the part of the Tribunal.

3.3.4    Ground two, draft notice of appeal

31    The second proposed ground in the draft notice of appeal is that:

The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

(errors in original.)

32    The pleading would seem to be that the Tribunal made a jurisdictional error because it did not arrive at its decision in accordance with the requirements of the Act. However, again the ground is framed at such a high level of generality that it does not identify any error. Nor can it be said that the Court below failed to consider the grounds of challenge on the application for judicial review. The Court below addressed both grounds of judicial review, as I explained at [15]-[16] above, and no error is exposed in its reasons for rejecting them.

4.    Conclusion

33    For the reasons given above, the application for an extension of time must be dismissed on the ground that any appeal would have no reasonable prospects of success. As the Minister has been wholly successful in defending the applications, the ordinary rule as to costs should apply and the applicant should pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    8 March 2016