FEDERAL COURT OF AUSTRALIA

CLF15 v Minister for Immigration and Border Protection [2017] FCA 306

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek leave to appeal is dismissed.

2.    The applicant is pay the first respondent’s costs fixed in the sum of $2,000.

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

REASONS FOR JUDGMENT

(Revised from transcript)

PERRY J:

1.    INTRODUCTION

1    This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court (Court below) dismissing the applicant’s application for judicial review on a show cause hearing under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (FCCR). By an application made on 20 November 2015, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (the Tribunal) made on 21 December 2015. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a protection visa.

2    The draft notice of appeal was attached to the affidavit of the applicant affirmed (and filed) on 25 August 2016. The draft notice of appeal does not identify any specific error but pleads simply that:

The Federal Circuit Court Judge erred in dismissing the case under section 17A of the Federal Circuit Court Act.

3    Nor are any grounds identified in the applicant’s affidavit. However, the applicant deposed that he is an unrepresented litigant and, while he found a pro bono lawyer, “[h]e wanted me to lodge my appeal first.” My understanding of that statement is that the lawyer concerned had agreed to act pro bono if the Court were to grant an extension of time and leave to appeal.

4    Furthermore, on 8 September 2016 the Registrar made orders for the filing of written submissions by the applicant no later than 10 days before this hearing. No submissions were filed by the applicant.

5    Written submissions were, however, filed by the Minister on 9 February 2017 in accordance with the Registrar’s directions. The applicant confirmed that he had received a copy of those submissions, as well as the application book. He also confirmed that the submissions were sight translated to him before the hearing by the Court appointed interpreter.

2.    PROCEDURAL MATTERS

6    I note that this matter was originally listed for hearing on 16 February 2017. However the matter was adjourned without opposition and relisted for hearing on 23 March 2017 in circumstances where the interpreter booked by the Registry at the applicant’s request failed to attend, no other interpreter was able to be arranged, and the applicant appeared unrepresented.

7    The applicant appeared at the hearing on 23 March 2017 without legal representation and was assisted by an interpreter in the Mongolian and English languages. He made brief oral submissions.

3.    FURTHER EVIDENCE

8    The applicant sought to rely upon three medical reports on the basis that they were the latest reports. While the applicant said that his treatment for psychological issues began after he arrived in Australia in 2008, he said that unfortunately he did not have the medical documents going back to that time. He said that he had not given any of the reports to the Tribunal.

9    However, as the Minister submitted, two of the reports on which the applicant sought to rely post-dated the Tribunal’s decision, that is, they were not in existence when the Tribunal made its decision. As such, they could not be relevant to the review of the legality of that decision in the Federal Circuit Court. The third report was dated 17 October 2015 and therefore predated the Tribunal’s decision (and, of course, the decision of the Court below). However there is no evidence that the report was before the Tribunal and indeed the applicant conceded that none of the reports were before the Tribunal. The Tribunal’s decision cannot be challenged (and could not have been challenged in the Court below) on the basis that the Tribunal failed to have regard to reports not in evidence before it or that in some other way they pointed to error in the Tribunal’s decision. As I later explain it is not open to this Court or the Court below to reconsider the merits of the Tribunal’s decision. The jurisdiction of this Court is limited to a consideration of whether the Court below erred in its decision that the Tribunal made a lawful decision.

10    For these reasons I will not receive the medical reports into evidence on the applications for leave to appeal and extension of time.

4.    BACKGROUND

4.1    The first application for a protection visa and applications for Ministerial intervention

11    The applicant is a citizen of Mongolia. He arrived in Australia on 22 January 2008 as the holder of a tourist visa.

12    On 21 February 2008, he applied for a protection visa (the first protection visa application) using a false name and claimed that he was a citizen of China. On 22 August 2008, the Tribunal affirmed a delegate's decision to refuse to grant the applicant the visa.

13    On 27 October 2008, the applicant applied unsuccessfully for Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (the Act). The applicant made a further two applications for Ministerial intervention on 23 September 2011 and on 24 May 2013 which were also unsuccessful.

4.2    The current protection visa application

14    On 17 October 2013, the applicant lodged a second protection visa application which was valid on the basis of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) (the current protection visa application). In the current protection visa application, the applicant uses a different name and states that he is a citizen of Mongolia.

15    On 30 April 2014, the delegate refused the protection visa application.

16    The applicant applied on 30 May 2014 to the Tribunal for review of the delegate's decision. He appeared before the Tribunal on 23 April 2015 (first Tribunal hearing). The member constituting the Tribunal was, however, unable to finish the review before his appointment expired. Accordingly, on 11 August 2015, the Tribunal invited the applicant to attend a further hearing before it to give evidence and present arguments. The applicant appeared on 20 October 2015 before the newly constituted Tribunal (second Tribunal hearing). On 21 October 2015, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.

4.3    The applicant’s claims

17    The applicant’s claims on his current protection visa application were summarised in the Court below as follows:

9. In the current protection visa application, the applicant claims to face significant harm from a dangerous group of criminals who:

a)    he encountered in the course of running his second hand car business. They demanded his money, took his cars, subjected him to beatings and threatened his family, causing him to have to flee Mongolia to England for four years, where he unsuccessfully sought recognition as a refugee;

b)    he again encountered, some years after returning from England to Mongolia, this time in the Mongolian taxation office. They constantly contacted him. Sometimes they "demanded [him] to the face contract under [the] company name which [he] was working". When he refused their demands, they beat him and threatened to kill him, causing him to go into hiding.

4.4    The Tribunal’s decision

18    The Tribunal found that the applicant was a citizen of Mongolia and assessed his claims against Mongolia. It accepted that the applicant had assumed a false name and false Chinese nationality for the purposes of the first protection visa application.

19    Applying the decision in SZGIZ, the Tribunal found that it did not have power to consider the applicant's claims under s 36(2)(a) of the Act because the applicant's first protection visa application was refused because the Tribunal was not satisfied that he was a refugee for the purposes of the Refugees’ Convention. The Tribunal therefore considered his claims as against the alternative criterion in s.36(2)(aa) of the Act for the grant of a protection visa on the ground that he was a person to whom Australia owes complementary protection obligations. Specifically, under s 36(2)(aa) the Minister may grant a protection visa to a non-citizen on the ground that the Minister is satisfied that Australia has protection obligations “because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

20    The Tribunal rejected the entirety of the applicant’s material claims to fear significant harm based on its findings as to the applicant’s credibility (Tribunal reasons at [64]). In this regard, the Tribunal found that his evidence was “contradictory, implausible and unconvincing” and that he had “fabricated” his claims in the current protection visa application and some of his evidence as he was giving it (Tribunal reasons at [29]). It found that the applicant “was prepared to say anything to obtain a Protection visa without any regard for the truth” and was not a credible witness (Tribunal reasons at [58]). Those findings were based upon a detailed consideration of the applicant’s evidence on a number of matters.

21    The Tribunal’s reasons record that it put the inconsistencies in the applicant’s evidence on which it relied directly to the applicant at the second Tribunal hearing pursuant to s 424AA of the Act and record the applicant’s responses.

22    With respect to a claim made by the applicant towards the end of the second Tribunal hearing that he was mentally stressed, cannot remember things, and is under “mental treatment”, the Tribunal found that:

51.    …When asked about this treatment, he stated that he used to attend counselling in 2004. He then stated that he still goes to counselling at STARTTS. He stated that it has been a long time and it is difficult to remember things. The applicant has not provided the Tribunal with any current evidence in relation to his mental state or him undergoing counselling. He has provided the Tribunal with an undated document titled “Review GP Management Plan Team Care Arrangement” from the McLeay Street Medical Practice…. This document sets out the details of his care providers and makes no reference to him attending on a counsellor, psychologist or psychiatrist. It refers to him having a problem with depression, being tasked to take medication as prescribed, maintain good physical health to improve psychological health and the avoidance of alcohol and non-prescribed medication to prevent depression and control significant alterations in mood.

52.    The Tribunal had the opportunity to observe the applicant throughout the hearing. He was articulate, composed and alert throughout the hearing. His answers were responsive to the questions asked. He was able to participate effectively throughout the hearing. The Tribunal is satisfied that he was not prevented by any physical or mental problem from giving evidence and presenting arguments relating to the issues in his case.

23    The Tribunal accepted that the applicant went to England unlawfully in 2002, lodged an unsuccessful application for refugee status, and voluntarily returned to Mongolia in November 2006. However, in light of its findings as to credibility the Tribunal:

(1)    did not accept that the applicant owned a business selling used cars in Mongolia and therefore rejected his claims relating to the criminals which followed; and

(1)    while accepting that it may be difficult for the applicant to obtain employment in Mongolia, found that the applicant had shown himself to be very resourceful with useful language skills that may enhance his employment prospects.

24    The Tribunal concluded that the applicant did not satisfy the criteria in s 36(2)(aa) of the Act for the grant of a protection visa on complementary protection grounds.

4.5    The decision of the Federal Circuit Court

25    In the Court below, the applicant raised the following grounds of review:

1.    The Tribunal erred in making an irrelevant consideration.

Particulars

a.    At [47] The Tribunal noted that the previous question (12) asked about close relative living in Australia and question 14 asked about close relatives living outside Australia, the applicant responded that his lack of English made him misunderstand the question. The Tribunal did not accept his explanation because:

i.    throughout the hearing the applicant chose to answer many of the questions in English despite having the assistance of a Mongolian interpreter and

ii.    did so in fluent English for the most part; and

b.    He did not seek assistance when completing his second application for protection because he did not need to.

2.    The Tribunal erred in failing to make a relevant consideration regarding the applicant's mental health.

Particulars

a.    At [51] the applicant said he was under “mental treatment" and submitted a document titled “Review GP Management Plan Team Care Arrangement";

b.    At [52] without asking the applicant about his mental treatment or medication the Tribunal made a finding based on its own observation of the applicant during the hearing that he was not prevented by any physical or mental problem from giving evidence and presenting arguments relating to the issues in his case; and

c.    The Tribunal actively ignored the medical evidence before her and thereby failed to consider that the applicant's inconsistent evidence may have been the result of his mental health.

26    The Court below dismissed the application pursuant to r 44.12(1)(a) of the FCCR on a show cause basis. That section provides that:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application.

…

27    In so holding, the Court below rejected the first ground of judicial review for the reasons that:

21.    In considering the applicant's assertion that "his lack of English made him misunderstand the question" in the application form, the applicant's previous evidence that he did not need any help completing the application form was clearly relevant. It was also not unreasonable for the Tribunal to have regard to its own observations of the applicant's English skills at the second Tribunal hearing as they were relevant to the issue of the applicant's claimed lack of English language skills.

28    The Court below also rejected the second ground, holding that it was “factually incorrect”. Specifically, the Court below held that:

23,    …At [51]-[52] of the decision record, the Tribunal explicitly considered the applicant's claim that he was mentally stressed and "under "mental treatment"", asked the applicant about this treatment and noted the documentary medical evidence provided by the applicant. As the applicant had "not provided the Tribunal with any current evidence in relation to his mental state or him undergoing counselling" and appeared "articulate, composed and alert" throughout the hearing, the Tribunal found that the applicant was not prevented from giving evidence or presenting arguments due to mental issues. This was a conclusion open to the Tribunal on the evidence before it.

24.    Further, the Tribunal's adverse credibility finding largely relied on false and inconsistent evidence provided by the applicant prior to the Tribunal hearings.

5.    CONSIDERATION

5.1    Principles governing the application

29    Rule r 44.12(2) of the FCCR expressly provides that a dismissal under paragraph (1)(a) is interlocutory. This means that the applicant requires a grant of leave in order to prosecute an appeal in this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In addition, as the Minister submits, under r 35.13 of the Federal Court Rules 2011 the applicant had 14 days after judgment was given below to apply for leave to appeal. As there was no other order fixing a date within which that application could be made, the application to this Court filed on 26 August 2016 was 10 days out of time.

30    The relevant principles were outlined in BOA15 v Minister for Immigration and Border Protection [2016] FCA 214, as relied upon by the Minister. Specifically at [19], the Court explained that:

The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Relevant considerations to deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Accordingly, as the Minister submitted, an assessment of the merits of the applicant’s appeal is relevant both to determining the application to grant an extension of time and, if an extension were granted, to the application for leave to appeal.

5.2    Should an extension of time be granted?

31    The explanation for the delay given by the applicant is that he was unable to obtain pro bono legal assistance in time. He was not cross-examined on that evidence and I accept, as did the Minister, that the applicant has given a reasonable explanation for the delay. The delay is also short. Nor did the Minister contend that he would suffer any prejudice by reason of the delay. The only issue is, as the Minister submits, whether the appeal would have any merit if an extension of time and leave to appeal were granted and whether there would be a substantial injustice if the extension of time and leave to appeal were refused.

32    As earlier explained, there are no proposed grounds of appeal which identify any specific error. The applicant has asserted only an unidentified error in the Court below in allegedly dismissing his application under s 17A of the Federal Circuit Court Act 1999 (Cth). That section provides that the Federal Circuit Court may give summary judgment (that is without a trial) where the Court is satisfied in a defended proceeding that the applicant has no reasonable prospect of successfully prosecuting the proceedings. However, as the Minister pointed out, the Court below did not dismiss his application under s 17A of the FCCT Act but under the show cause provision of the Federal Circuit Rules. Leaving aside that misunderstanding however, the fundamental difficulty is that no specific error in the decision of the Federal Circuit Court has been identified; nor has any specific error by the Tribunal been identified. In those circumstances, neither the Minister can meaningfully respond, nor can the Court meaningfully rule upon, the proposed ground of appeal and no reasonable ground of appeal is disclosed. I have also carefully considered the decision of the Court below and do not consider that there is any error apparent in its consideration of the two grounds of judicial review.

33    Finally, in his oral submissions the applicant spoke of his departure from Mongolia, the psychological stress from which he suffers, and the treatment from psychologists which he has apparently received in Australia. The applicant asked the Court to consider his personal circumstances when making its decision.

34    These submissions amount ultimately to the applicant expressing his disagreement with the outcome of the Tribunal’s decision. However, neither this Court nor the Federal Circuit Court has jurisdiction to decide whether on the evidence the Tribunal should have accepted the applicant’s claims and granted him a visa. Those are matters of fact which lie exclusively within the Tribunal’s jurisdiction. Equally, the Court does not have power to grant a visa or to recommend that a visa be granted on compassionate grounds, notwithstanding the personal hardships to which the applicant has referred. Rather, the jurisdiction of the Federal Circuit Court is limited to considering only the lawfulness of the Tribunal’s decision to refuse to grant him a visa, that is, to a consideration of whether the Tribunal’s decision is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. For example, the Court may intervene if the Tribunal did not properly apply the criteria for the grant of a visa or if the Tribunal did not act in a procedurally fair manner. In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am equally unable to consider the merits of the applicant’s claims, as his submissions would invite me to do, or to consider his personal circumstances, in reaching a decision on his applications for an extension of time and leave to appeal.

6.    CONCLUSION

35    For these reasons, the application for an extension of time within which to file an application for leave to appeal is dismissed on the ground that any appeal would lack any reasonable prospects of success. I will hear from the parties as to costs.

Associate:

Dated:    23 March 2017