FEDERAL COURT OF AUSTRALIA

CDW16 v Minister for Immigration and Border Protection [2017] FCA 468

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.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    This is an application for an extension of time in which to file an application for leave to appeal from an interlocutory judgment of the Federal Circuit Court of Australia. In that judgment the primary judge dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of the first respondent, the Minister for Immigration and Border Protection (Minister) to refuse to grant the applicant a protection visa. The primary judge dismissed the application on the basis that there was no arguable case for relief.

2    For the reasons that follow the application for an extension of time is dismissed.

BACKGROUND

3    The applicant, a citizen of Nepal, arrived in Australia on a Student (Class TU) visa in 2009. This application relates to an unsuccessful application by the applicant for a Protection (Class XA) visa (protection visa). A delegate of the Minister refused to grant the applicant a protection visa on 16 January 2015. That decision was affirmed by the Tribunal on 7 July 2016. The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. That application was dismissed by the primary judge on 5 December 2016.

THE TRIBUNAL’S REVIEW AND DECISION

4    It is unnecessary to set out at length the claims and evidence that provided the basis for the applicant’s visa application before the delegate and on review before the Tribunal. Suffice it to say, the applicant claimed to have a well-founded fear of persecution should he return to Nepal for reasons of his political opinions or affiliations.

5    The applicant claimed that he was a member of the Communist Party of Nepal and that he was very involved in local politics. That brought him to the attention of the opposing Maoists. The applicant claimed that his eldest brother was killed by the Maoists in 2008 and that, in 2009, he was abducted from his house by Maoists. The Maoists tortured him until he agreed to disown his membership of the Communist Party of Nepal and support the Maoists.

6    The applicant told the Tribunal that his fear of the Maoists increased to such a point that he found he could no longer remain in Nepal. At first he moved to Kathmandu where he was very careful about his movements. He was then able to leave Nepal and travel to Australia on a student visa, though it appears that he was only able to obtain that visa by falsifying a marriage. The applicant told the Tribunal that he briefly returned to Nepal in 2010 to visit his seriously ill mother, despite the great risk. The applicant claimed that he genuinely feared persecution from the Maoists if he was to return to Nepal.

7    The Tribunal decided to affirm the decision of the delegate to refuse the grant of a protection visa. The Tribunal rejected the applicant’s claims in their entirety, having found that the applicant’s evidence lacked credibility.

8    The Tribunal gave detailed reasons for rejecting the applicant’s claims. It pointed to several inconsistencies and inadequacies in the applicant’s evidence. It also identified a number of other issues it had with the evidence. Those issues included that, despite having supposedly fled Nepal fearing for his life, the applicant later returned to Nepal, and that the applicant’s family remained living and working in the same village where the applicant claimed he was under threat and where his older brother had been killed. The Tribunal also took into account the fact that the applicant was apparently willing to provide false and misleading information to the Australian authorities about his marital status to obtain a student visa, and that the applicant only applied for a protection visa when his supposed spouse’s student visa was refused, which was almost five years after he first arrived in Australia.

9    The Tribunal summed up its findings in paragraphs [39]-[41] of its reasons in the following terms:

[39] …Overall, the Tribunal rejects the applicant’s claims in their entirety. That is, the Tribunal does not accept that the applicant was politically active in Nepal and/or [was] of interest to the Maoists or anyone else; and the Tribunal does not accept that the applicant has a brother who was killed by the Maoists.

[40] For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

[41] Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT

10    The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. Regrettably, it appears that the applicant did not have the benefit of any, or any competent, legal advice in preparing his application. That is readily apparent from the grounds of review that he relied on, which contained little more than a series of generalised or formulaic assertions of error on the part of the Tribunal, many of which appeared to have little or nothing to do with what actually occurred in the Tribunal.

11    The applicant ultimately relied on an amended application which raised the following four grounds (as recited in the judgment of primary judge):

1. The Tribunal Member stated that it does not find me to be a credible witness and The Tribunal is of the view that I have fabricated claims to strengthen my protection application. The Tribunal Member based the finding of Jack of credibility was based on a clearly erroneous fact.

2. The Tribunal Member made a cursory conclusion in my claims of fear on return to Nepal and it committed a jurisdictional error in failing to address every part of my claims of persecution upon return to Nepal. The Tribunal did not comply with the requirements of s.424A. The Tribunal did not provide its adverse information in writing as required by s.424A (2)(a) and s.441A of the Act.

3. The Tribunal erred when addressing Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maoists and whether the Nepalese authorities had taken reasonable measures to protect me.

4. The Tribunal's conclusion that, even if my activities in Nepal or in Australia are considered cumulatively it was not satisfied that I would have an adverse profile with the Maoists or Nepalese authorities, indicated that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution. There is a degree of artificiality or stereotyping about the process of categorising me as either 'high-profile' or 'low-profile'. The Tribunal failed to consider, namely whether I have a well-founded fear of persecution for a Convention reason. The Tribunal's decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s.424A(1).

12    The primary judge set the matter down for hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At such a hearing, known as a “show cause” hearing, the Federal Circuit Court can dismiss the application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) makes it clear that such a dismissal is interlocutory in nature. The primary judge found that none of the grounds in the applicant’s application raised an arguable case for relief and accordingly dismissed the application.

13    In relation to ground 1 of the application, the primary judge noted that, despite being invited to make oral submissions in support of his grounds of review, the applicant was unable to identify the “clearly erroneous” fact upon which the Tribunal was said to have relied in order to reach its adverse credibility finding. The primary judge held that there was no substance to the applicant’s assertion that the credibility findings were based on any erroneous fact.

14    In relation to ground 2, the primary judge noted that the applicant was unable to point to any failure to follow the mandatory procedure of s 424A of the Migration Act 1958 (Cth). His Honour held that there was no information that was required to be disclosed to the applicant pursuant to s 424A of the Migration Act. The primary judge also expressed the view that the Tribunal’s reasons recorded that, for the purposes of s 425 of the Migration Act, the applicant was clearly on notice of the significant issues upon which the review would turn.

15    It is readily apparent that the primary judge was of the view that the applicant’s inability to advance any meaningful arguments in support of grounds 1 and 2 clearly demonstrated that those grounds were baseless.

16    It would appear that the applicant did not make any meaningful submissions in support of grounds 3 and 4. The primary judge noted that the applicant’s submissions focussed on the Tribunal’s credibility findings. In any event, in relation to ground 3, his Honour held that the Tribunal was aware of its obligations in its consideration of the United Nations Convention Relating to the Status of Refugees. His Honour also noted, referring to the particulars of the asserted error in ground 3, that, in light of the Tribunal’s credibility findings, it was immaterial whether the political changes in Nepal were “durable” or not. Similarly, in relation to the asserted error in ground 4, the primary judge held that it was not material whether the applicant was a high or low profile political operative. That was because the Tribunal had concluded that the applicant had no political involvement at all.

17    The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal and accordingly dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.

THE EXTENSION OF TIME AND LEAVE TO APPEAL APPLICATION – GROUNDS AND SUBMISSIONS

18    The applicant sought an extension of time and leave to appeal from the judgment of the Federal Circuit Court. Leave to appeal was required because the dismissal of the applicant’s case pursuant to r 44.12 of the Federal Circuit Court Rules was an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave. An extension of time was required because r 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 was pronounced. The applicant filed his application for leave to appeal 11 days outside that time period.

19    A consideration relevant to the exercise of the court’s discretion to extend the time within which an application for leave to appeal may be filed is the likelihood of leave to appeal being granted: Croker v Philips Electronics Australia Ltd [2000] FCA 1731 at [5]. In considering whether leave to appeal should be granted, the first limb of the relevant test involves a consideration of whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400.

20    It is convenient, then, to first consider whether the applicant has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The starting point is the draft grounds of appeal. Unfortunately, like the applicant’s grounds of review in the court below, the draft notice of appeal was, to say the very least, unhelpful. It sought to agitate arguments concerning the Tribunal’s decision that were either not advanced before the primary judge, or amounted to little more than arguments concerning the merits of the Tribunal’s findings.

21    The draft notice of appeal contained the following six grounds:

1. The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made an error of law in that the Tribunal Member has deprived me of natural justice and procedural fairness by failing to carry out its task constructively and lawfully in my case.

2. I was denied procedural fairness based on the Tribunal's findings that I lacked credibility and the rejection of my claims and evidence. The finding that the Tribunal actually made in my case was an irrelevant finding because the Tribunal's finding is based on its arbitrary views rather than facts towards my claims and evidence.

3. It is contended that the Tribunal Member erred by ignoring or undermining my claims on the issue of my suffering and fear of serious harm on return to Nepal in concluding that my brother was not killed and I had no political interest or opinion and l had held/hold no fear of persecution because of my political opinion in the past and present having regard to the material upon which it relied, that reliance being irrational and unreasonable.

4. I contend that the Tribunal's reasons ignored to deal with important elements of my claims which included the claim to have an actual political opinion because of my anti-Maoists attitude. The invitation to comment at the hearing was unnecessarily uninformative and in the circumstances inadequate.

5. The Tribunal Member made its mind not to believe me and my answers were squarely dismissive in which my case was taken in breach of the rules of procedural fairness and natural justice.

6. The Tribunal did not comply with the requirements of s.424A. The Tribunal did not provide its adverse information in writing as required by s.424A (2)(a) and s.441A of the Act.

22    The applicant did not file any written submissions, despite having been directed to do so. The applicant appeared unrepresented at the hearing of the application. While he advanced some oral submissions, those submissions did not advance his cause. The applicant simply said that he continued to fear for his life should he be forced to return to Nepal and felt that the Tribunal and the Circuit Court judge did not give his matter due consideration.

23    The merits of the proposed grounds of appeal may be dealt with in short terms.

24    The essence of the applicant’s first proposed ground of appeal is that the primary judge erred in not finding that the Tribunal denied him procedural fairness. The problem for the applicant is that he did not argue in the court below that the Tribunal denied him procedural fairness. The applicant’s grounds of review did include a contention that the Tribunal had failed to comply with s 424A of the Migration Act, though as has been seen the applicant failed to advance any argument in support of that contention before the primary judge. The primary judge was correct to dismiss any suggestion that there had been a breach of s 424A. As for any broader allegation of denial of procedural fairness, the primary judge found that it was obvious from the Tribunal’s record of what occurred at the hearing that the applicant was on notice of the significant issues upon which the review would turn. His Honour was correct in so finding. The applicant failed to advance any other comprehensible or meaningful submission in support of the allegation that he was denied procedural fairness. Proposed appeal ground 1 has no merit.

25    The applicant’s second proposed ground of appeal also raises an argument that the Tribunal denied him procedural fairness. The alleged denial of procedural fairness is based on the proposition that the Tribunal’s adverse credibility finding was arbitrary and not based on the evidence. As with proposed appeal ground 1, the first problem for the applicant is that this argument was not advanced in the Circuit Court. In any event, the argument has no substance whatsoever. A fair reading of the Tribunal’s reasons reveals that the Tribunal’s findings concerning the applicant’s credibility were based on the evidence and were anything but arbitrary. The findings were logical and rational and open on the evidence. Proposed appeal ground 2 has no merit.

26    The applicant’s third proposed appeal ground appears to do little more than raise arguments concerning factual findings made by the Tribunal and the merits of the Tribunal’s decision. It does not directly engage with any ground of review agitated in the Circuit Court, or allege any appellable error on the part of the primary judge. The contention that the Tribunal ignored the applicant’s claims, or that its findings were otherwise irrational or unreasonable, has no merit. The Tribunal’s factual findings were open to it on the evidence and were not in any sense irrational or illogical or otherwise open to judicial review. Proposed appeal ground 3 is without substance.

27    The applicant’s fourth proposed ground of appeal asserts that the Tribunal ignored important elements of his claims. While a similar allegation was made in ground 2 of the applicant’s review application in the Circuit Court, it does not appear that the applicant advanced any arguments before the primary judge in support of it. Nor did he advance any arguments in support of this allegation in this Court. As was the case in the Circuit Court, the applicant did not even attempt to identify what important elements of his claims were ignored. A fair reading of the Tribunal’s reasons reveals that it did not ignore any aspect of the applicant’s claims. Rather, the Tribunal found that the applicant’s evidence was not credible and therefore did not accept any of his claims. That is not to ignore the applicant’s claims. It is to reject them.

28    The applicant’s fifth proposed appeal ground returns again to the theme of denial of procedural fairness. This time the allegation appears to be that the Tribunal prejudged his case. No such argument was put to the primary judge. In any event, the argument is entirely without foundation. The argument appears to be based on nothing more than the Tribunal’s reasons. That is a hard road to hoe: see the observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18]. As Katzmann J noted in that case, where an argument of bias (which would include prejudgment) is based on the Tribunal’s reasons alone, if the reasoning process withstands scrutiny as being neither illogical nor irrational, there is no foundation for a conclusion that the decision is tainted by actual or apprehended bias. The Tribunal’s reasons in this matter do withstand scrutiny as being neither illogical nor irrational, and there is accordingly no basis for the allegation of prejudgment. Proposed appeal ground 5 has no merit.

29    Proposed appeal ground 6 concerns the allegation that the Tribunal did not comply with s 424A of the Migration Act. As has already been noted, this was one of the applicant’s grounds of review below, but at the show cause hearing he was unable to point to any information that should have been, but was not, notified to him pursuant to s 424A. Nor did he identify any such information in support of proposed appeal ground 6. The primary judge was correct to dismiss any suggestion that the Tribunal did not comply with s 424A. This proposed appeal ground has no merit.

30    There is, accordingly, no merit in any of the proposed grounds of appeal. I should add that, putting aside those grounds and submissions, in light of the fact that the applicant was not legally represented, I have closely reviewed the decisions and reasons of the Tribunal and the judgment of the primary judge. I can discern no error in the way the Tribunal conducted and determined the applicant’s review application. Nor can I discern any error in the judgment of the primary judge. It follows that the decision in respect of which leave to appeal is sought is not attended by sufficient doubt to warrant the grant of leave to appeal. It is therefore unnecessary to consider the second limb of the test for granting leave to appeal: whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor at 398.

31    In those circumstances, granting the applicant an extension of time to file an application for leave to appeal would be an exercise in futility. Leave to appeal would, in any event, be refused.

32    For completeness, it should also be added that, for the applicant to obtain an extension of time, he was required to give an adequate explanation for his failure to file his application within time. The applicant filed an affidavit in which he proffered an explanation for his failure to file an application within time. That explanation was far from adequate or satisfactory. The applicant claimed that he was unable to file an application for leave to appeal within the deadline due to financial hardship. He stated that he applied to the court for a fee waiver but was refused because of a lack of proper documentation and evidence.

33    The difficulty is that the applicant’s evidence was entirely bereft of any detail. He provided no details of his financial circumstances or employment status. He did not say how or when he approached the Court for a fee waiver. Nor did he indicate exactly why his documentation and evidence in support of a fee waiver was found to be wanting. It may well have been because he was in fact unable to establish financial hardship.

34    The unsatisfactory explanation provides an additional reason to refuse the applicant leave for an extension of time. It must be said, however, that if there was even a scintilla of merit in the leave application, it is doubtful that the inadequacy of the explanation alone would have justified refusal of the application to extend time.

CONCLUSION AND DISPOSITION

35    The applicant’s application for an extension of time and leave to appeal is dismissed.

36    The Minister has applied for costs of the unsuccessful application. In my view, there is no reason why costs should not follow the event. The applicant is accordingly ordered to pay the first respondent’s costs.

Associate:

Dated:    19 May 2017