FEDERAL COURT OF AUSTRALIA

SZUAR v Minister for Immigration and Border Protection [2016] FCA 742

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This is an application for extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 28 January 2016. The primary judge dismissed an application under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) to set aside orders made by his Honour on 20 October 2015. The earlier 20 October 2015 orders of the primary judge dismissed an application for review of a 23 January 2014 decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa.

2    The application for review was dismissed under r 13.03C(1)(c) of the FCC Rules upon the basis of the applicant’s failure to attend the scheduled hearing. The hearing on that day was, in turn, concerned with an application for an extension of time to bring the application for review in that Court. Because the 28 January 2016 application to set aside the orders of 20 October 2015 was interlocutory, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) requires leave to appeal.

3    Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days after the date on which the judgment is pronounced or order made, or such later date as is fixed. No later date was fixed, so the application for leave to appeal was required to be made by 11 February 2016. The 11 February 2016 deadline was not met. Instead, the applicant filed the present application for an extension of time and for leave to appeal eight days late on 19 February 2016. No explanation has been given for that delay.

4    The Full Court has confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is any acceptable explanation, the merits of the appeal proposed, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The delay in filing the present application was relatively small and, although this remained unexplained, it was not suggested by the Minister that this of itself was a sufficient reason to refuse an extension of time if the application was otherwise meritorious.

5    The Minister also properly conceded that there was no relevant prejudice. The main barrier advanced to the grant of an extension of time was the lack of merit in the proposed appeal. The Minister also pointed to the lack of any error on the part of the primary judge.

6    The discretion to grant leave to appeal in s 24(1A) of the Federal Court Act is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 – 400 accepted a line of authority as to the general guidance to be applied and which this Court should normally accept in the exercise of the discretion. That guidance comes down to two tests: first, whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and, secondly, whether substantial injustice would result if leave were refused, supposing the impugned decision to be wrong.

7    The two tests are not in separate compartments, but are cumulative. They also bear on each other so that the degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance in the two tests. No special consideration has been suggested as applying in this case and none is apparent.

8    The application was accompanied by a draft notice of appeal from the Federal Circuit Court of Australia. That draft notice of appeal raises three grounds. The first ground, stated in summary form, is that the primary judge failed to hold that the Tribunal committed a jurisdictional error when the Tribunal failed to apply the correct test in relation to complementary protection contained in s 36(2)(aa) of the Migration Act 1958 (Cth). The first ground goes on to assert that the Tribunal did not follow the test for a real risk of persecution and harm, that the Tribunal was unreasonable with regards to complementary protection and that the applicant would face harm if he was compelled to go to back to his country.

9    The second proposed ground of appeal is that the applicant asserts that he was denied procedural fairness when he did not get a chance to appear before the Federal Circuit Court to present his arguments, which I take to be a reference to the hearing following which orders were made on 20 October 2015. The ground goes on to assert that the applicant accepts that due to human error he forgot the date and time of the hearing. The ground refers to the applicant submitting an amended application on 6 June 2014, with an affidavit, and that he had very good prospects of success.

10    The third proposed ground in the draft notice of appeal raises a claim that Awami League Party workers and leaders in Bangladesh had targeted to kill him, and that the primary judge made a jurisdictional error when he agreed with the respondents. This ground claims that he was denied natural justice and procedural fairness when the Tribunal, in making its decision, ignored basic principles of hearing when irrelevant questions were asked only for the purpose of confusing and discrediting his oral evidence.

11    I have read the reasons of the Tribunal and of the primary judge carefully. I have been taken to portions of both in the Minister’s submissions in writing and orally during the course of the hearing today. I also heard oral submissions from the applicant which was necessarily limited because he is not legally qualified nor legally represented. The oral submissions from the applicant essentially amounted to a plea to be allowed to remain in Australia because of the fears he reasserted as to what would happen to him if he returned to his country.

12    I outline now the nature of the case that the applicant brought before the delegate and Tribunal before turning to the question of the underlying merits of his case.

Before the delegate and Tribunal

13    The applicant is a male citizen of Bangladesh. On 20 November 2012, he applied for a protection visa. On 24 July 2013, the application was refused by a delegate of the Minister. On 1 August 2013, the applicant applied to the then Refugee Review Tribunal for a review of the delegate’s decision.

14    On 17 December 2013, the applicant gave oral evidence before the Tribunal and was apparently questioned by the Tribunal member about the claims he had made. This was in keeping with the inquisitorial nature of a review tribunal of that kind and was apparently in accordance with the Migration Act provisions in relation to the conduct of such reviews.

15    On 23 January 2014, the Tribunal affirmed the decision not to grant the applicant a protection visa.

16    The applicant’s claims before the Tribunal may be shortly stated. He claimed that in 2000, through friends, he became a member of an underground political party called Sharbahara. The applicant claimed that he followed orders from the leader and carried weapons when required. The applicant claimed that he joined this party because it was in opposition to the Haque Group, which had raided the applicant’s residence in 1999 and then tied up the applicant’s parents and siblings, and stole money and gold.

17    The applicant claimed that in 2002 he became a member of the Bangladesh Nationalist Party (BNP) and participated in various political activities. The applicant claimed that he left the BNP in 2003 when one of the leaders was killed and, consequently, he made arrangements to leave Bangladesh. The applicant claimed that if he returned to Bangladesh he would be killed by the Haque Group or by police.

18    At the Tribunal hearing, the applicant raised the claim that he was robbed a second time and that his father had been extorted about six or seven times. The applicant also claimed that the Sharbahara would want to harm him because members are not allowed to leave the party. The applicant further claimed that he would be persecuted for having spent many years abroad and would be identifiable as a westerner or as a wealthy westerner.

19    The Tribunal found that the applicant’s claims were not credible on the basis that he had provided inconsistent evidence in respect of key aspects of his claims. The Tribunal did not accept the applicant’s representative’s submission that he was nervous and stressed when he prepared his statutory declaration. Nor did it accept that the applicant did not know the depth that he should go into about his claims in an effort to explain why he had not raised, prior to the Tribunal hearing, serious claims that his residence was robbed a second time and that his father had been extorted on six or seven occasions.

20    The Tribunal found the applicant’s knowledge of Sharbahara was vague and lacking in detail. It referred to his lack of knowledge of the policies and ideals of that party and also found that his evidence was inconsistent. The Tribunal was also not satisfied that, if the applicant’s uncle had played any role in him joining the Sharbahara, he would have failed to mention this throughout the application process.

21    Ultimately, the Tribunal was not satisfied that the applicant was a member of Sharbahara or that his family were the victims of repeated extortion. The Tribunal did not accept that if the applicant returned to Bangladesh he would face harm from the Haque Group or that he would be detained or killed for the reason of his alleged membership of Sharbahara.

22    The Tribunal did not accept that the applicant was a member of the BNP or Jamaat-e-Islami or that he would be targeted as a westerner or a wealthy westerner. Because the Tribunal rejected the applicant’s claims as not being credible it was not satisfied that if he were to be removed back to Bangladesh that there was any real risk that he would suffer significant harm.

23    From all of the foregoing, it is plain that the applicant failed before the Tribunal on credibility assessments. It is well-known that that is the role of the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67].

Before the Federal Circuit Court

24    By an application filed on 18 March 2014 the applicant sought an extension of time to apply for judicial review of the decision of the Tribunal. That was necessary because the application was 19 days outside of the 35 day limit contained in s 477(1) of the Migration Act. Pursuant to s 477(2) of the Migration Act, the Federal Circuit Court may order that the time period under s 477(1) can be extended if it is satisfied that it is necessary in the interests of the administration of justice to make the order.

25    The applicant appeared at the first court date and call-over before the Federal Circuit Court. His application was ultimately listed for hearing on 20 October 2015 and he was advised of this by a letter sent to him by the Court to his address for service. The applicant did not appear at the scheduled hearing and the application for an extension of time was dismissed by the primary judge pursuant to r 13.03C(1)(c) of the FCC Rules.

26    On 25 November 2015, the applicant filed an application in a case seeking to have the orders made on 20 October 2015 set aside, pursuant to r 16.05(2)(a) of the FCC Rules. That application was supported by an affidavit affirmed by the applicant on 25 November 2015. The application was heard before the primary judge on 28 January 2016. The applicant gave oral evidence at the hearing and was cross-examined. His evidence was that his failure to appear on 20 October 2015 was due to illness and because he had been unaware of the hearing date. At that hearing, he was given leave to file an amended application, the grounds of which are set out in the primary judge’s reasons delivered the same day at [26].

27    The primary judge did not accept the applicant’s explanation for failing to attend at the scheduled hearing on 20 October 2015 and found that the application for review did not have reasonable prospects of success.

The application in this Court

28    I have already outlined the application made before this Court and the legal principles attaching to the related applications for an extension of time and for leave to appeal. I have also outlined the terms of the draft notice of appeal.

29    The Minister made submissions in support of the dismissal of both applications. The Minister submitted that the power being exercised by the primary judge in dismissing the set aside application was discretionary, which is undoubtedly correct. The Minister submits that to succeed in challenging the exercise of discretion by the primary judge to refuse reinstatement, the applicant would need to show that his Honour made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505; that is, the applicant needed to show that the exercise of discretion had miscarried because the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters or made a mistake of fact. Alternatively, a failure to exercise properly a discretion may be inferred where the discretionary judgment is unreasonably or plainly unjust, which can apply when there is no error apparent on the face of the reasons given.

30    The Minister submits that the primary judge correctly identified the principles which govern the exercise of power under r 16.05(2) of the FCC Rules, citing the decision in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. The Minister points out that the primary judge did not accept the explanations offered by the applicant for his failure to appear on 20 October 2015. That was a matter within the prerogative of the primary judge, and I can see no error on the part of his Honour.

31    As the Minister points out, in the second proposed ground of appeal the applicant asserts that he did not attend due to human error, having forgotten the date and time of the hearing. However, this is not the explanation that was offered to the primary judge on 28 January 2016. In his evidence at that hearing, the applicant claimed not to have been aware of the scheduled hearing date and to have been sick on the hearing date. This evidence was rejected by the primary judge. I accept the Minister’s submission that those findings were reasonably open to his Honour and can discern no error.

32    The primary judge found that the applicant did not have reasonably arguable prospects of success in the application for review before that Court. In reaching that finding, his Honour had regard to the grounds of the amended application filed by the applicant, which are effectively replicated by the applicant in the second proposed ground of appeal in the draft notice of appeal filed in this Court on 19 February 2016. It is submitted by the Minister that to the extent the applicant asserts in the proposed grounds of appeal that the amended application had prospects of success, his Honour was correct to find that it did not have such prospects for the reasons given by his Honour. I agree.

33    The Minister further contends that the proposed grounds do not point to any error in the primary judge’s finding in this regard, nor do they point to any jurisdictional error on the part of the Tribunal such that there would not be any basis, let alone a sufficient basis, to doubt his Honour’s conclusions. Again, I agree.

Proposed ground one

34    Turning to proposed ground one, alleging that the Tribunal misapplied s 36(2)(aa) of the Migration Act and that its finding that the applicant did not satisfy this criterion was unreasonable, the Minister submits that this cannot be sustained. The Minister submits that the Tribunal rejected the entirety of the applicant’s factual claims, and it was upon this basis that the Tribunal found that the applicant did not satisfy the complementary protection requirements. Again, I agree. In substance, the applicant is seeking to take issue with the merits of the Tribunal’s finding rather than rely upon any jurisdictional error on the part of the Tribunal.

Proposed ground two

35    Proposed ground two in the draft notice of appeal asserts that the applicant was denied procedural fairness before the primary judge because he was not given the opportunity to present arguments in support of his case. While the dismissal which was sought to be set aside was reached by the application of the rules dealing with non-appearance, it is clear that the applicant was afforded the opportunity both to appear at that time and to appear on 28 January 2016. As noted above, on the latter date he did appear and did give evidence and did present arguments. However, he did not succeed. That lack of success, without more, does not constitute any denial of procedural fairness.

Proposed ground three

36    The third proposed ground of appeal in the draft notice of appeal makes a number of allegations. Dealing with them in turn, the first allegation repeats the applicant’s claims to be entitled to a protection visa, which plainly seeks impermissible merits review and cannot succeed. The second allegation is that the primary judge simply agreed with the decision of the Tribunal. As the Minister correctly points out, this misunderstands the role of the Federal Circuit Court, which was to consider whether the decision of the Tribunal was affected by jurisdictional error and not to conduct any form of merits review. Finally, the applicant takes issue with the Tribunal’s questioning of him at the Tribunal hearing. As the Minister points out, that was in keeping with the inquisitorial nature of the Tribunal review process. I can find no error in the Tribunal conducting the hearing in the conventional way, let alone jurisdictional error.

Conclusion

37    As the Minister submitted, the matters raised by the applicant do not point to any breach of the Tribunal’s obligations under s 425 of the Migration Act, and none of them is capable of establishing any other jurisdictional error on the part of the Tribunal. There is no realistic prospect of any of the three proposed grounds of appeal succeeding. Accordingly, there can be no injustice at all, let alone substantial injustice, in refusing leave to appeal. If there is to be no leave to appeal, the application for an extension of time must also fail because granting it would be futile. There is insufficient merit to warrant the granting of any extension of time.

38    The application for an extension of time and for leave to appeal should be dismissed, with costs.

Associate:

Dated:    17 June 2016