FEDERAL COURT OF AUSTRALIA

MZALP v Minister for Immigration and Border Protection [2016] FCA 557

ORDERS

THE COURT ORDERS THAT:

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

MURPHY J:

1    The applicant is a 33 year old male citizen of India of Muslim faith who arrived in Australia on 19 February 2013 on a Subclass 456 short stay business visa. His visa was valid until 19 May 2013 and on 2 December 2013 he lodged an application for a Protection (Class XA) visa (“protection visa”). He seeks an extension of time for leave to appeal from an interlocutory judgment of the Federal Circuit Court on 17 December 2015 (MZALP v Minister for Immigration and Border Protection [2015] FCCA 3586) in which the court refused his application to reinstate judicial review proceedings. The application for judicial review concerned a decision of the Refugee Review Tribunal (“Tribunal”) on 15 September 2014 which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse his application for a protection visa.

2    I have refused the application for an extension of time essentially because the appeal does not have reasonable prospects of success.

The facts and procedural history

3    In his application for a protection visa the applicant made various written claims. In broad summary he claimed that:

(a)    he had a secret relationship with a girl of Hindu faith, but their relationship was exposed when they were seen together by her relatives. Given their different faiths the girl’s parents were very concerned about their relationship, and organised a “street court” which led to what the applicant called a “communal riot”;

(b)    following the riot he did not see his girlfriend for six months but, having met up accidentally, they decided to run away together. They went to another district to live in hiding but did not get married because they did not have enough money. One day they decided to flee to a different state but they were arrested by the police, having been identified from photographs in the “missing persons” section of a newspaper;

(c)    he was charged with the abduction and rape of his girlfriend. His parents came to the police station and bailed him out, but the girl’s parents were very angry and a large mob of Hindus came to his area and attacked his family and other Muslims who lived nearby. After that, his parents confined him to their house for several days but a big crowd gathered outside his house and his parents told him to run away “somewhere”;

(d)    some time later he learned that his girlfriend had committed suicide;

(e)    while he was on bail and in hiding his parents were arrested at the behest of his former girlfriend’s parents. He surrendered himself to the police and his parents were released, and then he was released one month later;

(f)    some time later both of his parents committed suicide;

(g)    the rape and abduction case against him proceeded, but it was dismissed by a magistrate because there were no witnesses against him;

(h)    people who belong to “a Hindu fanatic group” attempted to kill him but he escaped with minor injuries. When he was offered a chance to come to Australia he immediately took that up; and

(i)    if he returned to India he would be targeted for harm by Hindu extremists and by the family of his former girlfriend.

The delegate’s decision upon the applicant’s failure to attend for interview

4    On 2 December 2013 the delegate sent a letter to the applicant requesting that he contact the department within seven working days to arrange an interview to discuss his claims. However, the applicant did not respond to the letter.

5    On 9 April 2014, being satisfied that the applicant had a reasonable opportunity to furnish his claims and supporting materials, the delegate assessed his application based on the material supplied. The delegate considered the applicant’s claims to be vague, unsubstantiated and far-fetched and did not accept that the applicant had a genuine fear of returning to India. Accordingly, the application was refused.

The Tribunal’s decision upon the applicant’s failure to attend the Tribunal hearing

6    On 1 May 2014 the applicant sought review of the delegate’s decision by the Tribunal. He was represented in the review by a registered migration agent.

7    On 16 July 2014 the Tribunal wrote to the applicant informing him that it considered the material before it but it was unable to make a favourable decision on the basis of that information alone. The Tribunal invited the applicant to attend a hearing on 9 September 2014 to give evidence and present arguments in support of his application. On 8 September 2014 the applicant’s representative requested an adjournment on the basis that the applicant was suffering from a viral fever and would be unfit from 8 to 10 September 2014. The Tribunal agreed to adjourn the application and invited him to a hearing on 11 September 2014.

8    On 10 September 2014 the applicant’s representative returned the hearing invitation and indicated that the applicant and the representative would attend the scheduled hearing. However, on 11 September 2014 the applicant’s representative attended the Tribunal hearing and the applicant did not. Neither the applicant’s representative nor the Tribunal were able to contact the applicant by telephone.

9    In reliance on s 426A of the Migration Act 1958 (Cth) (“the Act”) the Tribunal decided to make its decision without taking any further action to enable the applicant to appear before it.

10    In its decision the Tribunal said (at 19) that “as the applicant did not attend the hearing, the Tribunal was denied an opportunity to test his claims.” It briefly set out the applicant’s claims (at 19) and then said (at 21-22):

The Tribunal considers the applicant's claims to be vague and unsubstantiated. He does not provide dates or even approximate times for any of the events he describes, nor does he provide the names of any the protagonists other than the first name of his girlfriend, Jyothi. He gives no details or how or when he commenced his relationship with Jyothi or how long it lasted. He claims to have been subjected to a 'street court' but gives no details of how that court operated or what it decided. He claims that his relationship with Jyothi prompted two riots but gives no details of when these occurred or his involvement in those riots. He claims that his parents both committed suicide but doesn't say when or whether this relates to his claims. Had the applicant attended the scheduled hearing the Tribunal would have asked the applicant about these and other matters. In his protection visa application form he states that he will provide his parents' and girlfriend's death certificates and evidence of the attack on him, however those documents have not been provided to the department or the Tribunal.

On the basis of the very limited evidence before it, the Tribunal cannot be satisfied that the applicant has suffered harm or mistreatment in the past from his girlfriend's family or Hindu extremists, nor that there is a real chance that he would be subjected to harm or mistreatment from those persons or any other persons on the basis of his relationship with Jyothi if he returned to India now or in the foreseeable future. Therefore the Tribunal does not accept that the applicant faces 'serious harm' such as could amount to persecution as claimed by the applicant. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to India, now or in the reasonably foreseeable future. As such, it is not necessary for the Tribunal to consider whether it might be reasonable for the applicant to relocate to another part of India where he might be protected.

11    Before me, the applicant submitted that he was unwell on 11 September 2014 and could not attend the Tribunal hearing. However, he put on no evidence in support of that submission.

The Federal Circuit Court’s decision upon the applicant’s failure to attend the hearing

12    On 30 September 2014 the applicant filed an application for judicial review in the Federal Circuit Court. On 16 February 2015 the Court wrote to the applicant informing him that his application was listed for a Show Cause Hearing on 22 April 2015. The applicant did not attend the hearing.

13    Pursuant to r 13.03C of the Federal Circuit Court Rules 2001 the Court ordered that the application be dismissed for the applicant’s non-attendance.

The application for reinstatement in the Federal Circuit Court

14    On 16 June 2015 the applicant applied to the Federal Circuit Court to reinstate his application for judicial review, and that application came on for hearing on 17 December 2015. The applicant appeared in person.

15    The applicant submitted that he did not attend the hearing on 22 April 2015 because he was not receiving his mail and did not have notice of the hearing. However, the primary judge concluded (at [2]) that the applicant was aware of the hearing date because he had the Minister’s outline of submissions which included notification of that date.

16    The primary judge noted that the applicant had not attended the interview with the delegate and that the Tribunal decision was made after two attempts to hold hearings with the applicant which had both failed (at [4]-[5] and [7]). His Honour said that the first Tribunal hearing was adjourned because of the applicant’s illness, and that the applicant’s representative attended the second hearing but the applicant did not. His Honour noted that attempts to telephone the applicant were unsuccessful and concluded “[n]ot surprisingly, following these events, the Tribunal proceeded to make a decision based upon the written material.”

17    The primary judge then recounted paragraphs 21 and 22 of the Tribunal decision (as set out above) and said (at [8]):

The applicant’s grounds for judicial review in these proceedings are, in substance, that the applicant wasn’t given a proper opportunity to be heard. It is difficult to see how, on the material before me, it could be said that the applicant was denied a reasonable opportunity to be heard in this case, given that the tribunal adjourned the hearing on one occasion to allow the applicant an opportunity to be heard and on the second occasion his representative was there but he didn’t attend.

18    The primary judge also considered the other grounds of the application (at [9]). Apart from the asserted failure to provide the applicant with an opportunity to be heard, his Honour considered the asserted grounds went to the merits of the application for a protection visa rather than to identifying any error of law.

19    His Honour concluded that the applicant had not raised an arguable case and declined to set aside the order dismissing the proceedings. His Honour delivered ex tempore reasons for judgment.

The application for extension of time for leave to appeal

20    On 1 February 2016 the applicant filed an application for extension of time for leave to appeal supported by his affidavit sworn the same day and attaching a draft Notice of Appeal.

21    Pursuant to r 35.13(a) of the Rules, any application for leave to appeal from the interlocutory judgment on 17 December 2015 was required to be filed within 14 days. No application was filed within that period and the application for an extension of time for leave to appeal was 32 days late.

Relevant principles in an application for extension of time

22    As I said in MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [23]-[24] the relevant considerations in an application for extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) at 348-9; Singh v Minister for Immigration and Border Protection [2015] FCA 483 (Kenny J) at [20]. Those factors are not exhaustive and the outcome of an application to extend time depends on the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J with Edmonds J agreeing). The merits of the proposed appeal will often be central: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [14] (Jessup J with Edmonds and Griffiths JJ agreeing.)

23    In the circumstances of the present case the salient considerations are:

(a)    whether there is acceptable explanation for the delay;

(b)    whether there is prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(c)    whether the application for leave to appeal has reasonable prospects.

Is there an acceptable explanation for the delay?

24    The application for an extension of time and the applicant’s affidavit in support are difficult to understand and do not clearly set out why the applicant failed to file the application within time.

25    On one reading the applicant’s materials indicate that he did not lodge the application within time because he mistakenly considered the date on which the orders of the Federal Circuit Court were entered (12 January 2016) was the commencement of the time period for filing an application for leave to appeal.

26    Then, before me, the applicant submitted that he was advised by his migration agent to await receipt of sealed orders and reasons for judgment before consideration could be given to an appeal. He submitted that he lodged the application seeking leave to appeal within four to five days of receiving the orders. However, he did not mention this in his affidavit and there is no evidence to support this submission.

27    Even if I were to accept the truth of the applicant’s assertions, there is little force in his submission. First, if his migration agent provided such advice it was erroneous. The applicant was present in court on 17 December 2015 when the orders were made and the time ran from that date. Second, the applicant previously missed the time limit when seeking reinstatement of his application before the Federal Circuit Court. He should have been careful to avoid doing so again. Third, even if it is the case that the applicant understood that time ran from 12 January 2016, he did not meet the 14 day time limit.

28    In my view the procedural history shows that the applicant has repeatedly been dilatory in advancing his claim and it is likely that his late lodgement of the application for leave to appeal is just another example. However, it is appropriate to take into account the applicant’s limited English language skills, that he said he could not afford legal representation, and that for him it would have been difficult to ascertain the 14 day time limit for an appeal from an interlocutory judgement. On balance, while I do not consider the applicant established a satisfactory reason for the delay in making the application, this factor does not carry great weight in my decision.

Is the Minister prejudiced by the delay?

29    The Minister did not submit that there was any prejudice to his interests by reason of the delay. Given that the delay in lodging the application for leave to appeal was only 32 days I am satisfied there was no real prejudice.

Does the application for leave to appeal have reasonable prospects of success?

30    The draft Notice of Appeal is difficult to comprehend but, doing the best I can, it alleges:

(a)    the applicant and his former girlfriend were of different faiths. Exceptional circumstances beyond the applicant’s control mean that he cannot return to India where he faces threats to his life. He cannot go to India, has no option to go to another country, and accordingly he seeks protection in Australia;

(b)    the applicant was unwell on the date fixed for the Tribunal hearing and no hearing was conducted;

(c)    the applicant applied to the Federal Circuit Court but the application was dismissed due to his non-attendance on the date fixed for hearing. The applicant lodged an application to reinstate the application and, due to lack of legal knowledge, he did not put on any evidence. He requested the Court to accept oral evidence in relation to his claim for protection;

(d)    in his application to reinstate the Federal Circuit Court proceeding he was ordered to submit any additional grounds a review and provide complete particulars, but he did not do so due to lack of legal knowledge. However, he attended the hearing and made oral submissions;

(e)    the present situation is outside the applicant’s control and he lodged the application for leave to appeal to the Federal Court within time;

(f)    a new argument has come to light which demonstrates manifest error by the Tribunal and he wishes to be heard on that; and

(g)    the applicant is ready to provide valid reasons why his progress in further education is unsatisfactory and to show his eligibility for a protection visa.

31    In part the grounds of appeal repeat claims that were addressed by the Tribunal on the materials before it and were found not to engage Australia’s protection obligations under the Act. I can see no jurisdictional error by the Tribunal in regard to those claims or appealable error in the reasons for judgment of the limited primary judge. It is trite but necessary to observe that the Court has no jurisdiction to conduct a merits review of the Tribunal’s decision.

32    The main focus of the applicant’s case is that he was not accorded procedural fairness because the Tribunal made the decision in his absence and without hearing further from him. In essence, he submitted that he was denied an opportunity to put on evidence substantiating his claims.

33    There is, however, little merit in the applicant’s contention. Section 426A(1A) of the Act provides that where an applicant does not appear before the Tribunal on the day that the applicant is scheduled to appear, the Tribunal may “make a decision on the review without taking any further action to allow or enable the applicant to appear before it.”

34    In my view the primary judge was correct in holding that the Tribunal was entitled to decide the application on the material before it when the applicant failed to attend the scheduled Tribunal hearing on 11 December 2014. I consider the applicant was given a proper opportunity to be heard and the Tribunal’s decision was not affected by jurisdictional error.

35    In relation to the alleged “new argument”, it became clear in oral submissions that this was not an application to advance a new ground of appeal but a reiteration of the submission that the applicant should be allowed to put on new evidence to substantiate his claims about the alleged events in India. In my view this is not a case in which that should be permitted.

36    I say this, first, because the applicant was given an opportunity to give evidence and present arguments before the delegate, and then before the Tribunal, and he did not take that up. Based on the materials before it the Tribunal found the applicant’s claims were “vague and unsubstantiated”. That conclusion was plainly open to it when the applicant did not provide any dates or even approximate times of the events, did not provide the names of the protagonists, claimed that his girlfriend committed suicide but did not say when or provide any proof in that regard, claimed that his parents committed suicide but did not say when or whether that related to his claims or provide any proof in that regard, and claimed that his relationship with his girlfriend prompted two riots but gave no details of when they occurred or his involvement in them.

37    Second, the evidence which the applicant seeks to put forward goes to the merits of his claims and the Court has no jurisdiction to conduct a merits review of the Tribunal decision.

38    I respectfully agree with the learned primary judge that the applicant has no arguable case and, in my view, there is no jurisdictional error in the Tribunal deciding the applicant’s claim without hearing further from him.

Conclusion

39    On the basis that the application for leave to appeal does not have reasonable prospects of success I have dismissed the application for an extension of time for leave to appeal and ordered the applicant to pay the respondent’s costs of the application.

Associate:

Dated:    19 May 2016