FEDERAL COURT OF AUSTRALIA

ABD15 v Minister for Immigration and Border Protection [2016] FCA 928

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time and leave to appeal be dismissed.

2.    The Applicant pay the First Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant has made an application for time to be extended for her to file a notice of appeal. The applicant seeks to appeal the judgment of a judge of the Federal Circuit Court of Australia (the primary judge), whose reasons for judgment are published as ABD15 v Minister for Immigration and Border Protection [2015] FCCA 2899. The primary judge dismissed the applicant’s application for judicial review of the decision of the second respondent (the Tribunal), to affirm a decision refusing the applicant a Protection (Class XA) visa.

2    The application before the primary judge was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). The order made dismissing the application was interlocutory as provided by r 44.12(2) of the FCC Rules. Should the extension of time be granted, the applicant also requires leave to file an appeal from an interlocutory order of the Federal Circuit Court by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant has also applied for that leave.

3    The relevant background and a summary of the decision of the Tribunal is helpfully set out in the outline of submissions of the first respondent (the Minister) at [6]–[7]. As to the applicant’s claims:

6.1    The applicant’s husband was abusive, an alcoholic and a gambler. In 2008, he forced her to pay the difference in price between their home which was forcibly sold by the Chinese government and their new property. The applicant would have nowhere to live if she returned to China. Following her father’s death, she was dismissed from her job resulting in a life of humiliation, hardship and discrimination.

6.2    The applicant was a practitioner of Falun Gong while in China. Her father was also a practitioner, who died while detained by the Chinese authorities. The applicant petitioned the authorities to seek justice for her father’s death. The applicant was caught by the police when practising Falun Gong with her mother in 2012, which led to her being interrogated, as well as a number of subsequent incidents involving the police.

As to the Tribunal’s decision (references omitted):

7.1    The Tribunal found, on the basis of numerous inconsistencies in the applicant’s evidence over time, that she was not a “credible, truthful and reliable witness” and was of the view that the applicant had “fabricated claims and concocted evidence to achieve an immigration outcome”. In reaching its adverse credibility findings, the Tribunal had regard to the applicant’s claimed medical and memory difficulties, noting that “no independent evidence” had been provided to support such a claim and concluding that the applicant’s claimed health issues had not had any effect on her ability to present consistent evidence.

7.2    On the basis of the inconsistencies set out at [64]–[78] of its decision, the Tribunal did not accept the applicant’s claim to be a Falun Gong practitioner or to have ever practised Falun Gong in China, rejecting the remainder of the applicant’s claims in relation to her Falun Gong practice.

7.3    While the Tribunal accepted that the applicant experienced past difficulties with her husband, it did not accept that these continued following their separation, that he had threatened her recently or that she feared to return to China for any reason connected to him. Further, the Tribunal did not accept that the applicant’s husband had sold their home and that she had nowhere to live upon her return home to China, nor did the Tribunal accept any of her claims in relation to the forced sale of her earlier home in 2008 or that she would be of adverse interest to the authorities on this basis.

7.4    The Tribunal did not accept the applicant’s claim to have lost her job because of her father’s involvement in Falun Gong or her conduct following his detention. Further, The Tribunal did not accept the applicant’s claim that she did not want to return to China because she would be unable to obtain employment. Further, the Tribunal did not accept that at the time the applicant departed China in March 2013 she held any concerns for her safety or feared harm for any of the reasons claimed.

7.5    The Tribunal accepted that the applicant took part in Falun Gong demonstrations and lectures in Australia, but was not satisfied that the reason for undertaking these activities had been otherwise than to strengthen her claims and disregarded this conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (the Act). The Tribunal found that the applicant did not face a real chance of persecution for any of the reasons claimed in relation to her or her family practising Falun Gong.

7.6    Having considered her claims individually and cumulatively, the Tribunal was not satisfied on the evidence that the applicant had a well-founded fear of Convention-based persecution. On the basis of its anterior findings of fact, the Tribunal did not accept that the applicant faced a real risk of significant harm.

7.7    In regard to the applicant’s Falun Gong activities following her arrival in Australia, the Tribunal was satisfied that, because of the limited nature and extent of the applicant’s involvement in Falun Gong activities and events and her likely behaviour on return to China, and on the basis of country information before it, she would not be of adverse interest to the authorities. Accordingly, the Tribunal found there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm for these activities.

Discussion

4    I turn first to address the relevant legal principles relating to the applications for leave made by the applicant. It is well established that the considerations relevant to the Court’s discretion to extend time include the length of the delay and whether the applicant has provided an adequate explanation for the delay. A further consideration is whether an applicant has demonstrated that there is a prospect of success on the substantive appeal: SZQEH v Minister for Immigration and Citizenship [2012] FCA 127 at [16]–[17].

5    The principles concerning the grant of leave in respect of an interlocutory judgment are also well established. Those principles are set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399. The test for granting leave to appeal from an interlocutory judgment comprises two questions:

(1)    Whether in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered on appeal; and,

(2)    Whether substantial injustice would result if leave were refused supposing the decision to be wrong.

I will address first the question of whether an adequate explanation for the delay has been provided.

6    The delay in question in this case is relatively short (six days) and it is not really contended that there was any prejudice suffered by the Minister as a result. Nevertheless, an extension of time should ordinarily be refused where an adequate explanation for the delay has not been given: SZQEH at [16]–[17]. The applicant’s application was supported by an affidavit. The affidavit does not provide any explanation for the delay. The applicant appeared before me this morning. She was unrepresented. She was assisted only by the services of an interpreter. I asked her for an explanation in relation to the lateness of her application. She tried to provide an explanation but her explanation was ambiguous. She referred to the fact that she did not speak English and had not had the assistance of either a translator or a migration agent. She also suggested that when she first tried to file an appeal she was told that it could not be lodged.

7    There are difficulties with the explanation, including that it was not given under oath. But in the absence of prejudice and given the short nature of the delay, I will only attach minimal weight to the unsatisfactory nature of the explanation. There are other more significant matters which have persuaded me to reject the applicant’s application. I turn then to consider whether there is any merit in the proposed appeal.

8    I turn to that question primarily to consider whether the first limb of the Decor test has been satisfied but also to consider whether leave to appeal out of time should be granted.

9    The task of the primary judge was a limited task. Her Honour’s task was to judicially review the decision of the Tribunal by reference to the grounds of review raised by the applicant’s application for judicial review. Having considered those grounds at [44]–[45] of the primary judge’s reason for judgment, the primary judge concluded that the applicant had not identified any jurisdictional error on the part of the Tribunal and that none was apparent on the face of the decision record. For the detailed reasons given in the primary judge’s reasons for judgment, the primary judge was not satisfied that the applicant had raised an arguable case for the relief she claimed. For that reason, the primary judge exercised her discretion under r 44.12(1) of the FCC Rules to dismiss the application.

10    The primary judge’s judgment sought to be challenged in this Court on the basis of three grounds set out in a draft notice of appeal. Those grounds are as follows (as stated and uncorrected):

1.    AAT has bias against me as I was deprived of the benefits of doubts.

2.    AAT have denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

3.    Federal Circuit Court unfairly reviewed my case. For my safety, I can not back to China. If you send me back to China. It is a murder. Please review my case again carefully. All evidence and documents I provided are true.

11    I will commence with draft ground 3. It is only that draft ground which asserts error on the part of the primary judge. The essence of that ground, as I understand it, is that the primary judge “unfairly reviewed” the applicant’s judicial review application. No particulars are provided under that ground. When asked this morning to make submissions in relation to that ground the applicant essentially made two points. The first was that the primary judge had not asked her many questions. The second was that she was told that the primary judge had no jurisdiction to review previous materials. I think that what the applicant is really saying is that the primary judge failed to review the merits of her application. That submission misunderstands the limited role that the primary judge had, including that the task of the primary judge did not include a review of the merits of the applicant’s application before the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no basis for thinking that the primary judge’s judgment is attended by sufficient doubt by reference to draft ground 3.

12    I will next consider draft ground 1. I will treat this draft ground as raising a failure by the primary judge to identify bias by the Tribunal and a failure to provide the applicant the benefit of the doubt in relation to her evidence. No particulars were provided in support of this ground. When I asked the applicant to make submissions in support of draft ground 1 she said, in essence, that she felt it useless to give any explanation to the Tribunal member. She also made the point that the Tribunal kept challenging her. She said that the Tribunal member did not look at her and that she thought that that indicated bias. Further, the applicant suggested that her interpreter had left the hearing early but there was no evidence to that effect and, in any event, it does not seem to me to be relevant to any question of bias.

13    An allegation of bias is a serious allegation that must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 69.

14    It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision-maker’s reasons: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons: SCAA at [38]. Further, there is no legal principle which requires the Tribunal to give an applicant the benefit of the doubt: SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 at [10]–[11]. Nor is the Tribunal under any obligation to uncritically accept any and all allegations made by the applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437.

15    The primary judge dealt with an allegation of bias by prejudgment at paragraphs [20]–[33] and at [39] of the reasons of the primary judge. I can see no basis for error in the primary judge’s approach. The applicant has not raised anything today to support an allegation of bias. I consider, therefore, that there is no merit in draft ground 1. It fails to provide any basis for thinking that the primary judge’s judgment is attended with sufficient doubt to warrant its reconsideration.

16    I turn lastly to draft ground 2. This draft ground effectively contends that there was a failure by the Tribunal to provide adequate reasons. The draft ground is not particularised. The applicant said that she was not sure what constitutes sufficient reasons but that she had told the Tribunal the truth and she had no money for legal representation. The contention that the Tribunal’s reasons were inadequate was considered by the primary judge at [34] and [35] of her Honour’s reasons. The primary judge found that the reasons of the Tribunal were comprehensive and detailed and that there was no basis for the suggestion that the reasons were inadequate.

17    Having considered those reasons for myself, I can see no error in the approach of the primary judge. Draft ground 2 also fails to raise any basis for thinking that the primary judge’s judgment is attended with sufficient doubt to warrant its reconsideration. None of the draft grounds establish the first limb of the Decor test. They also fail to establish that the proposed appeal has any prospect of success.

18    It follows that the applicant’s applications for leave must be rejected. It also follows that the applicant should be ordered to pay the Minister’s costs of the application.

Associate:        

Dated:    12 August 2016