FEDERAL COURT OF AUSTRALIA

SZPAB v Minister for Immigration and Border Protection [2016] FCA 1590

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs of the application fixed in the sum of $3,800.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application for an extension of time to file a notice of appeal from the refusal of the Federal Circuit Court to grant the applicant Constitutional writ relief: SZPAB v Minister for Immigration [2016] FCCA 1328.

Background

2    The applicant is a citizen of Nepal who came to Australia on 2 July 2009. She first applied for a protection visa on 29 April 2010. The Minister’s delegate decided not to grant the protection visa, having regard to the delegate’s adverse credibility findings. The applicant then sought review in the Refugee Review Tribunal, which affirmed the delegate’s decision on 31 January 2011. On 4 November 2011, Flick J dismissed her appeal to this Court from a refusal of judicial review (SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253) and the High Court dismissed the applicant’s application for special leave to appeal on 11 January 2012.

3    The applicant then remained in Australia as an unlawful non-citizen. Following the amendment of the Migration Act 1958 (Cth) to include s 36(2)(aa) and as a result of the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant made a second application for a protection visa on the complementary protection ground. The second delegate decided not to grant the protection visa on the complementary protection ground on 21 July 2014 and she sought review of that decision in the Administrative Appeals Tribunal.

4    In essence, in its decision of 25 August 2015, the subject of this appeal, the Tribunal determined that the applicant was not a credible, truthful or reliable witness in relation to matters central, and related, to her claims. It found that she had fabricated accounts of events in Nepal, as well as her future fears and circumstances. The Tribunal’s decision recorded a considerable number of instances in which it had assessed the applicant’s claims and evidence in order to arrive at its adverse credibility findings. In essence, it concluded that there was no basis for the applicant’s claims to fear significant harm and, accordingly, was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there was a real risk that she would suffer significant harm for the purposes of s 36(2)(aa).

5    The Tribunal also reconsidered the applicant’s claims to a protection visa based on her earlier and updated claims under s 36(2)(a), namely, whether she had a well-founded fear that she would be persecuted or suffer serious harm for a Refugees Convention reason now or in the reasonably foreseeable future if she were to return to Nepal. Because of its adverse credibility findings about the applicant and her claims, the Tribunal determined that, were it to have had jurisdiction to consider the application under s 36(2)(a) of the Act, it would not have found that the applicant was entitled to protection.

The proceedings in the Federal Circuit Court

6    The applicant’s grounds for review in the Federal Circuit Court were that:

(1)    she disagreed with the Tribunal’s decision because she had told it the truth, but the Tribunal had arrived at an arbitrary view on her claims and her problems in Nepal with the Maoists, whom she claimed were the source of her fears;

(2)    the Tribunal failed to accord her natural justice; and

(3)    the Tribunal’s decision involved an error of law.

7    The trial judge recorded in his reasons that on 12 November 2015, a registrar of the Federal Circuit Court had made orders that permitted the applicant to file an amended application, affidavit evidence and submissions. His Honour noted that the applicant did file an affidavit annexing a part of the transcript of the hearing in the Tribunal and also a written submission that had asserted the Tribunal did not ask, or allow her to explain, the core reasons why she could not return to Nepal. The submission asserted she had not had a chance to state her substantial fear or express her real situation.

8    His Honour set out in his reasons that he had explained to the applicant that hers was a final hearing to determine whether the decision of the Tribunal had been affected by a legal error and that, in summary, he had to consider whether the decision was lawful and was fair. His Honour recorded that the applicant informed him that she understood the nature of the hearing as he had explained and that her case was that she had put her claims to the Tribunal but that she had not been given justice because it had not accepted her claims and evidence.

9    His Honour dismissed the application, holding that the Tribunal had provided cogent and comprehensive reasons in relation to its adverse credibility findings that were open on the material before it that could not be said to be unreasonable. For those reasons, the trial judge rejected claim 1.

10    The trial judge found that, on the evidence before him, the applicant had been given a genuine hearing before the Tribunal. His Honour noted that the part of the transcript of that hearing, that the applicant had annexed to her affidavit, revealed that the Tribunal had raised with the applicant its credibility concerns in relation to her evidence and that that process was consistent with the Tribunal’s obligation of according procedural fairness, or, in other words, natural justice. His Honour noted that the Tribunal had taken into account the applicant’s assertion, when the Tribunal assessed her credibility, that she had been anxious, depressed and tense, as well as her assertion that she had had limited education. The trial judge was not persuaded that the Tribunal had denied the applicant natural justice in the conduct of the hearing and determination of her claims and rejected ground 2 of the application below that had asserted to the contrary.

11    His Honour noted that ground 3 was a generalised allegation that did not identify any jurisdictional error and that, in essence, the applicant was seeking that the Court below engage in a review of the Tribunal’s decision on its merits, which was not the function of the Court. His Honour then dismissed the application with costs.

This application

12    In her draft notice of appeal, the applicant raised four grounds, namely, that his Honour erred by:

(1)    informing her that the Court below was deciding whether the decision of the Tribunal was “fair”;

(2)    not explaining the distinction between whether a decision was fair and what impermissible merits review was;

(3)    not providing any meaningful guidance about the content of the requirements of natural justice other than to state that his Honour had to determine whether the decision was fair; and

(4)    failing to find that the Tribunal had made a jurisdictional error because the applicant had been denied natural justice.

13    The applicant told me that she did not know what was wrong with the Tribunal’s decision except that she had told it the truth and it had not believed her. She said that as a non-legally trained person she was not able to identify, understandably, what legal error the Tribunal had made. However, she contended, that she had done everything according to law and that she could not be returned to Nepal.

Consideration

14    An application for an extension of time in which to file an appeal challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4]; see also per Kirby J at 539-543 [66]. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. (emphasis added)

15    I appreciate the difficulties that the applicant, as a person for whom English is not a first language and who is not by profession a lawyer, let alone a lawyer trained in the intricacies of Australian principles for judicial review, faces in seeking to challenge an administrative decision such as that of the Tribunal when bringing proceedings such as the present.

16    I have had regard not only to the basis which the applicant has articulated in her affidavit and in her submissions to me today in support of the extension of time that she seeks. I have also considered whether, having read the Tribunal’s decision and that of the trial judge, and inquired of the solicitor appearing for the Minister, if there were any ground that might appear to a lawyer who could act for her that she possibly could raise, for the purpose of ascertaining if there were any intelligible ground of review of the Tribunal’s decision or ground of appeal from his Honour’s judgment, that would have any prospect of success. The Minister’s lawyer was unable to identify any such ground when I asked him.

17    The substantial reason that the applicant gave both to the trial judge and to me as to why the Tribunal’s decision should be set aside was that she had told it the truth and it should have believed her. She did not identify any part of the Tribunal’s reasons or anything that occurred in the Tribunal hearing or processes that raised an arguable ground that, in some way, the Tribunal had not acted in accordance with the procedures and processes mandated by law in deciding to affirm the delegate’s decision not to grant her a protection visa.

18    The assessment of an applicant’s claim to be granted a protection visa, ordinarily, will very much depend on whether and to what degree the Tribunal accepts that the person’s claims to protection have been established. This is largely done on the basis of the Tribunal assessing an applicant’s credibility as to the claims to protection that he or she puts forward to it. An assessment of whether an applicant for a protection visa is telling the truth is particularly the province of the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J.

19    At one point in the Tribunal’s reasons, it dealt with a claim that the applicant had made that, after she had arrived in Australia, her husband had died from injuries he had received in an incident that formed a critical part of her claims to protection. She had claimed that, in this incident, she and her husband had been severely treated by Maoists. In arriving at its finding as to her credibility, the Tribunal gave detailed attention to the applicant’s differing accounts of what happened on that occasion and to material that she had provided it to support her claims. It was prepared to accept that the applicant was married, but because of its lack of belief in her evidence about her husband’s death, it found that her husband was not dead and did not accept her claim that he was. The Tribunal found that the applicant and her husband would live together in her village were she to return, and that he was working. I raised that positive finding of the Tribunal namely, that the applicant’s husband was still alive, with the Minister’s solicitor, for the purposes of ascertaining whether there was any potential argument that the Tribunal had committed a jurisdictional error that the applicant might have raised on that finding. He submitted that, having accepted that the applicant was married but rejected her claims that her husband had died, it was open to the Tribunal then to find that her husband was still alive. I am satisfied that in the circumstances of this case that that is so.

20    It is correct, as the applicant’s first draft ground of appeal notes, that the trial judge’s shorthand of explaining that he was deciding whether the decision was “fair”, may not be a legally full or accurate proposition. However, for the purposes of explaining to a non-lawyer in the applicant’s position before him the nature of the arguments which she needed to address to the Court, in the circumstances before his Honour, I do not consider that his Honour committed any error of explanation that would have any prospect of success in supporting an appeal.

21    In essence, a person who has no legal training in an unfamiliar court environment is not likely to be helped by a technical, legally fulsome explanation of what jurisdictional error consists of at the outset of the hearing. Most people understand the notion of fairness and often that will encapsulate what the person needs to know in order to articulate their case as to the essence of what can be argued. Sometimes such lay arguments expose what a Court can recognise as jurisdictional error. His Honour was inviting the applicant, in lay terms that she could understand, to explain why she wanted the decision set aside. I am not satisfied that any injustice occurred in his Honour’s use of his shorthand explanation nor did the applicant articulate to me any reason why what his Honour put to her would have made any difference had he given a more detailed and probably incomprehensible explanation of jurisdictional error, a matter of great legal intricacy. In my opinion, the first ground in the draft notice of appeal has no prospect of success.

22    The second ground contended that his Honour did not explain to the appellant the distinction between whether a decision was fair and what was impermissible merits review. However, that was not his Honour’s role. In her argument to me today, the applicant has told me, I accept sincerely, that the reason that she seeks judicial review is because the Tribunal should have believed her. That is a ground that, as a matter of law, is impermissible merits review. When I explored her complaint with her, she was not able to explain what, if any, other error she could identify in the Tribunal’s assessment of her credibility from which it would be possible for me, or with the further inquiry I made of the solicitor for the Minister, to identify a ground of jurisdictional error. In my opinion, the second proposed ground has no prospect of success.

23    The appellant’s third ground contended that his Honour failed to provide any meaningful guidance about the contents of the requirements of natural justice, other than to state that he had to determine whether the decision was fair. This is really a restatement of the earlier grounds. In conducting Court hearings in which parties are unrepresented and may have no substantive understanding of technical legal areas, a trial judge or appeal court can provide very limited guidance to litigants in person in circumstances where the court must be, and be seen to be, neutral in maintaining the balance between contesting parties who, as often is the case in such situations, do not themselves appear to be evenly matched. I do not see that his Honour erred in the way in which he conducted the hearing. In my opinion the third ground has no sufficient prospects of success to warrant a hearing on appeal.

24    The fourth ground is effectively an unparticularised claim that the Tribunal made a jurisdictional error. As I have explained, having considered the Tribunal’s decision in detail myself, his Honour’s reasons and inquired of the solicitor for the Minister, I am satisfied that, on the material available, there is no apparent or arguable ground of jurisdictional error in the Tribunal’s decision. It follows that the fourth ground, on the material before me, has no prospect of success.

Conclusion

25    Accordingly, although the applicant has given an explanation for her delay in filing a notice of appeal and the Minister can point to no other prejudice than the loss of his vested right in the decision below, for the reasons I have given, any appeal, if filed, would have no prospect of success. For these reasons, I dismiss the application for an extension of time with costs fixed in the amount of $3,800.

Associate:

Dated:    3 February 2017