FEDERAL COURT OF AUSTRALIA

SZVMG v Minister for Immigration and Border Protection [2016] FCA 1365

ORDERS

THE COURT ORDERS THAT:

The application dated 8 July 2016 be dismissed with costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application dated 8 July 2016 for an extension of time to appeal from a decision of a Judge of the Federal Circuit Court of Australia. In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) in which the Tribunal affirmed the decision of the Minister not to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Migration Act). The Tribunal made that decision pursuant to s 426A of the Migration Act in circumstances where the applicant did not appear at the Tribunal hearing.

2    In these proceedings the applicant also sought leave to appeal from the primary decision. However as the Minister correctly submitted, the applicant does not require leave to appeal because the decision of the Federal Circuit Court was final. An extension of time is required however pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), because the applicant did not file a notice of appeal within 21 days of the judgment of the Federal Circuit Court as required under r 36.03 of the same Rules. It is not in dispute that the applicant sought to file his notice of appeal 40 days out of time.

3    The applicant appeared in person at the hearing before me. The grounds of his application were as follows:

1.    I failed to attend the interview of RRT because I remembered the wrong date. I realized that I made a very serious error. Therefore I had to appeal to the Federal Circuit Court hoping getting one more chance to seek a fair judgment.

2.    One of the reasons why RRT refused my application was because I couldn’t provide sufficient evidence about claims. This is because those materials are very sensitive. I don’t want to put my family in danger to send me the evidence, so I don’t ask my family to send them to me. I hope Your Horner [sic] would consider my compelling circumstances.

3.    Another reason is I was unable to explain the experience of persecution in China in details. Your Horner [sic], please consider a [sic] actual situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to other people about my experience. Besides I was very nervous during the interview, my mind was confused and I felt very scared, especially, when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decided to apply to seek judicial review to the Federal Circuit Court because I must try my best to seek another chance for myself.

4.    Unfortunately, the Federal Circuit Court couldn’t consider my situation.

5.    I am forced to seek the chance to appeal to the Federal Court.

6.    After my application was refused by the Federal Circuit Court on 8th Apr. 2016, I appealed to the Federal Court on 22th [sic] Apr. 2016. After one month, I called to the Federal Circuit Court asking whether they had received my application and replied. A lady official answered me with a Chinese interpreter that she was examining my application for exemption of my application fees. On 30th Jun. 2016, I got to the Court office and checked about my application. I was told that they could not find my file in their computer system and asked me to again lodge an application.

I have to [sic] prepared the application. I implore your Court would consider my actual matter and accept my application.

(Errors in original.)

4    The draft grounds of appeal on which the applicant seeks to rely are set out his affidavit dated 8 July 2016. Those draft grounds of appeal are in substantially identical terms to the grounds of the application currently before the Court. They are as follows:

The reason why I failed to attend the interview because I remembered the wrong time of the hearing date and then I was not in Sydney on that date. I realized I made a serious mistake, so I applied for a review to the Federal circuit Court and hope I would kave [sic] a more chance to seek a fair judgment.

One of the reasons why RRT refused my application was because I could not provide sufficient evidence about claim. This is because the evidences are very sensitive. I don’t want to put my family in danger to send me the evidence, so I didn’t ask my family to mail them to me. I hope Your Honer [sic] can consider my compelling circumstances.

Another reason why RRT refused my application was because I was unable to explain the experience of persecution in China in details. Your Honer [sic], Please consider my avtual [sic] situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to others about my experiences. Besides, I was very nervous during the interview, my mind was very confused and I felt very scared, especially, when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decided to apply to appeal to the Federal Circuit Court because I really want to seek another chance for myself.

The Federal Circuit Court dismissed my application that made me very sad. I have to appeal to the Federal Court for the last chance.

(errors in original.)

5    At the hearing of the application the applicant submitted, in summary, that he wanted an opportunity to present his case.

Decision of the Tribunal

6    Section 426A of the Migration Act provides:

426A    Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 425 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)    by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:    Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:    Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B)    If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:    Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C)    On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a)    if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

(b)    confirm the decision to dismiss the application, by written statement under section 430.

Note 1:    Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:    Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D)    If the Tribunal reinstates the application:

(a)    the application is taken never to have been dismissed; and

(b)    the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E)    If the applicant fails to apply for reinstatement within the 14 day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:    Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F)    If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G)    To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

7    Plainly, s 426A of the Migration Act confers discretion on the Tribunal to make a decision on the review or dismiss the proceedings. The Tribunal in its decision explained that it had decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

8    The Tribunal set out in detail the nature of the applicant’s claims, including that he had been assaulted and tortured, and his business destroyed, following his complaints concerning corruption in the local village officials, and as a result of the vindictiveness of the director of the village. The Tribunal accepted that, although the applicant did not specify a Convention ground as the basis of his claim, he could be seen to have claimed harm because of his real or imputed political opinion.

9    Based on the material before it, the Tribunal observed that the applicant’s claims to fear harm in China “consist of no more than a number of brief and entirely unsubstantiated assertions.” The Tribunal explained, for example, that:

19.    Neither the written material nor the Applicant’s evidence at the Departmental interview provides significant circumstantial detail about these alleged events. He has not made clear exactly why he would have taken a leading role in opposing corruption his village in 2011 without any claimed previous history of political activism or an interest in bringing corrupt officials to justice. He does not explain how he was in a position to become aware of the electoral fraud he alleges, or of the fraud and embezzlement said to have been engaged in by a number of corrupt officials.

10    Materially, the Tribunal continued:

20.    The circumstances described by the Applicant could be seen as dramatic and memorable ones for him if they were, as he claims, sufficiently serious to cause him to flee his homeland to seek safety in Australia. It would be reasonable to expect him to be able to explain such circumstances in some depth. I am not satisfied, however, that his unsubstantiated and generally brief account of his experiences provides a sufficient basis to be satisfied that he ever protested against electoral fraud and corruption in his village or that he ever suffered harm for such a reason. I would have used the opportunity of the hearing to ask him about these matters and allow him the opportunity to explain how they would engage Australia’s protection obligations. This was not possible, however, because he did not attend the hearing on the date and at the time and place which were scheduled notwithstanding that the hearing invitation letter of 10 September 2014 made it clear that the Tribunal was not able to make a favourable decision on the information before it. The right to give oral evidence is an applicant’s to exercise or waive as he or she chooses and no adverse inference can be drawn from a decision to forgo that right. However, where an applicant does not attend a hearing the Tribunal has only the information before it from which to make a determination.

21.    In the present case the information before the Tribunal does not provide a sufficient basis to be satisfied there is a real chance that on return to China the Applicant would suffer harm of any kind for the Convention reason of his political opinion, real or imputed, adverse to corrupt officials. He does not claim to fear harm in China for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal.

11    The Tribunal concluded that it was not satisfied that the applicant was a refugee, and that it was not satisfied that if he were removed from Australia to China there would be a real risk that he would suffer significant harm in terms of s 36(2)(aa) of the Migration Act.

Federal Circuit Court

12    The applicant sought review of the decision of the Tribunal on four grounds, which are substantially identical to the grounds currently before this Court. They were:

1.    The reason why I failed to attend the interview because I remembered the wrong time of the hearing date, so I was not in Sydney on that date. I realized I made a very serious mistake, so I applied a review to Federal Court of Australia and hope that I can have one more chance to seek a fair judgment.

2.    One of the reasons why RRT refused my application was because I could not provide sufficient evidence about claim. This is because those materials are very sensitive. I do not want to put my family in danger in order to send me those evidences, so I did not ask my family to mail them to me. I hope Your Horner [sic] can consider my compelling circumstances.

3.    Another reason why RRT refused my application was because I was unable to explain the experience of persecution in China in details. Your Horner, [sic] please consider my actual situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to other people about my true experiences. Besides, I was very nervous during the interview, my mind was confused and I felt very scared, especially when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decide to apply a review to Federal Circuit Court of Australia because I feel I am ready and want to seek another chance for myself.

4.    I wish the Federal Circuit Court of Australia could consider my situation.

(Errors in original.

13    In summary, his Honour found as follows.

14    The first ground of review could properly be interpreted as a claim that the Tribunal acted unreasonably by exercising the power conferred by s 426A(1) of the Migration Act in the manner it did. His Honour observed that the discretion of the Tribunal conferred by that section must be exercised reasonably. After discussing concepts of reasonableness in detail (at [15]-[28]) his Honour turned to the subject matter, scope and purpose of s 426A(1) of the Migration Act. In this light at [30]-[32] his Honour observed that purposes of s 426A(1) were:

    to permit the Tribunal to complete a review in a timely manner;

    to provide certainty in the means by which the Tribunal may be taken to have communicated with an applicant for the purposes of a review;

    considerations of fairness and the need to accord substantial justice to an applicant.

15    His Honour said:

34.    Although the Tribunal was aware the applicant had indicated he would appear at the hearing, the Tribunal member could not reasonably have been expected to assume or suspect that the applicant’s failure to appear was due to some mishap which would have rendered it unfair or unjust for the Tribunal to have exercised the discretion under s.426A(1) of the Act as the Tribunal member did by deciding to proceed with the review without rescheduling the hearing. That is particularly so in the circumstances of this case where the applicant did not attempt to contact the Tribunal to explain his absence. Further, given the subject matter, scope, and purpose of s.426A(1) of the Act, the Tribunal was not required to consider whether the reason an applicant did not appear was that the applicant had forgotten. If that were so, the Tribunal would be required, in every case where an applicant does not appear, to attempt to contact the applicant before the Tribunal could exercise the power conferred by s.426A(1) of the Act. That would add a precondition to the exercise of the power under s.426A(1) of the Act that does not appear in the text of that subsection.

35.    It is true that the Tribunal in this case made its decision at 9:25 am on 15 October 2014, which is just under 22 ½ hours after the scheduled hearing time and date, and that may be considered a relatively short time within which the applicant could have contacted the Tribunal about his non-appearance. On the other hand, short as it was, the period could reasonably have been regarded by the Tribunal as sufficiently long to have provided the applicant a reasonable opportunity to contact the Tribunal, if the applicant had in fact suffered some misadventure that prevented the applicant from attending the hearing and which could have rendered unfair the Tribunal’s decision to proceed with the application without rescheduling the hearing.

36.    It is also true that some illnesses and misadventures may be of such character as to make it impossible for an applicant to contact the Tribunal. For example, an applicant may have been involved in a serious accident that rendered the applicant unconscious for days. In the case before me, however, the Tribunal assumed the applicant did not suffer any misadventure that made it impossible or at least difficult for the applicant to contact the Tribunal. That assumption is revealed in the Tribunal’s noting that the applicant did not contact the Tribunal to explain his absence. It was reasonably open to the Tribunal to so assume, given that it could reasonably have been supposed by the Tribunal, simply on the basis that such misadventures are relatively rare, that the likelihood of the applicant having suffered such mishap was very small.

37.    I am troubled by this last conclusion, for it would mean that if an applicant suffers a severe mishap, the Tribunal, if unaware of such mishap, could reasonably proceed to determine the review without rescheduling a new hearing. That would cause a substantial injustice. The only way, however, to eliminate the possibility of this occurring in relation to any applicant who suffers such mishap would be to require the Tribunal in every case to contact by telephone an applicant who has failed to appear at the hearing, whether or not the applicant has informed the Tribunal he or she intends to appear. In my opinion, however, to impose such requirement would be contrary to the purpose of s.426A(1) of the Act, properly construed. It would mean that the Tribunal would have no discretion to proceed to complete a review where an applicant does not appear at a hearing without rescheduling the hearing, unless the Tribunal first attempts to contact the applicant, at least where it is practicable for it to do so. That would add a precondition to the exercise of the power under s.426A(1) of the Act that does not exist in the text of that subsection.

38.    In my opinion, therefore, the Tribunal’s decision to exercise the power conferred on it by s.426A(1) of the Act in the circumstances of this case was within the range of decisions a reasonable Tribunal would have made, given the subject matter, scope, and purpose of s.426A(1) of the Act, and the facts as they were known to the Tribunal.

16    His Honour went on to consider a number of authorities to which the Minister referred in respect of principles of reasonableness, specifically AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 and Ponugoti v Minister for Immigration and Border Protection [2015] FCA 67. After examination of these cases in light of relevant principles (at [39]-[44]) his Honour concluded that the issue should be determined by applying orthodox principles of reasonableness. Accordingly, his Honour dismissed the first ground of review.

17    In respect of the second ground of review, his Honour observed at [47] that it provided a reason why the applicant could not provide sufficient evidence about his claim. His Honour concluded, however that this did not constitute a matter which was relevant to whether the Tribunal had made a jurisdictional error. Accordingly, his Honour found that the second ground of review failed.

18    In respect of the third ground of review, his Honour found at [50]-[51] that the nervousness of the applicant and his difficulties in relation to obtaining evidence did not point to jurisdictional error on the part of the Tribunal. Accordingly, his Honour found that the third ground of review failed.

19    Finally, his Honour found at [53]-[54] that the fourth ground of review did not disclose any jurisdictional error in circumstances where it merely requested the Court to consider the applicant’s situation.

20    In conclusion, his Honour held that the application should be dismissed.

Application for extension of time to appeal from decision of the primary Judge

21    It is well-settled that factors for the Court to take into consideration in determining whether an extension of time should be granted include:

    the extent of the delay;

    the explanation for the delay;

    any prejudice the respondent might suffer resulting from the delay if an extension of time is granted; and

    the merits of the proposed appeal.

(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.)

22    The Minister conceded that he would suffer no prejudice from the delay in the event an extension of time were granted. The Minister submits, however that:

    the extent of the delay is significant;

    the applicant’s explanation for the delay is inadequate; and

    the proposed grounds lack sufficient merit to warrant the grant of an extension of time.

23    In this case I consider that the delay of 40 days is moderate, but the applicant’s explanation for the delay is acceptable if not compelling. I make this observation in circumstances where the applicant’s understanding of English appears poor, he is a litigant in person, and he claims that he understood that he had filed a notice of appeal within time.

24    Critically, however, I am satisfied that the proposed grounds of appeal lack sufficient merit to warrant the extension of time the applicant has sought.

25    As I have already observed, the grounds of appeal proposed by the applicant are in substantially identical terms to the grounds of review before the learned primary Judge. The only real difference between the draft grounds of appeal and the grounds of review below is the applicant’s plea to this Court to grant him a “last chance”. As this is more in the nature of an exhortation than a ground of appeal of the primary judgment it clearly has no merit.

26    Insofar as concerns the other draft grounds of appeal before this Court, they are fundamentally submissions advanced as grounds of appeal. In considering these grounds, I note that the same matters were carefully and thoughtfully examined by the primary Judge. As his Honour correctly observed, the Tribunal was required to exercise its discretion under s 426A reasonably: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29], [63] and [88]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [43]. This invariably is a fact-dependent exercise (Singh 231 FCR at [42]), referable to whether the exercise of the relevant power is seen by the supervising court as lacking “an evident and intelligible justification” (Singh 231 FCR at [44]). In this case his Honour found that the decision of the Tribunal to proceed to decision was within the range of decisions a reasonable Tribunal would have taken, given the subject matter, scope and purpose of s 426A(1) and the facts as known to the Tribunal. I am unable to identify any errors in the reasoning of his Honour.

27    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    16 November 2016