FEDERAL COURT OF AUSTRALIA

BMX16 v Minister for Immigration and Border Protection [2017] FCA 700

ORDERS

THE COURT ORDERS THAT:

The application for extension of time filed on 8 February 2017 be dismissed with costs.

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 for extension of time to appeal a decision of a Judge of the Federal Circuit Court.

2    The primary judge dismissed the applicant’s application for judicial review on 14 November 2016. The application for extension of time was filed on 8 February 2017. Accordingly the application was filed more than two months out of time.

Background to the appeal

3    The applicant is a citizen of Bangladesh and was born in May 1988.

4    He arrived in Australia on 6 May 2013 and applied for a Protection (Class XA) visa on 13 August 2013. The applicant provided a statutory declaration with his visa application, detailing his claim of involvement with the Bangladesh Nationalist Party (the BNP). On 30 December 2014, a delegate of the Minister for Immigration and Border Protection (the Minister) refused the visa application.

5    The following day, the applicant applied for review of the decision at the Administrative Appeals Tribunal (the Tribunal). At the hearing before the Tribunal, the applicant was represented by a registered migration agent and assisted by an interpreter.

6    The Tribunal affirmed the decision under review. The Tribunal considered that the applicant’s evidence lacked credibility, particularly in light of inconsistencies between the statutory declaration and his claims before the Tribunal. Specifically, the Tribunal found:

34.    … Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.

7    The Tribunal concluded:

35.    Accordingly, the Tribunal disbelieves the applicant’s evidence that his brother, the applicant himself and other family members supported, undertook activities for and were involved with the BNP; that the applicant or any member of his family were ever threatened or harmed in Bangladesh.

…

37.    There is no credible evidence that the applicant or any member of his family suffered harm in Bangladesh and there is no credible evidence that anyone in Bangladesh seeks to harm them.

Federal Circuit Court

8    The applicant was represented by counsel at the hearing before the Federal Circuit Court.

9    At [1] of the primary decision his Honour summarised the grounds of review before him as follows:

a)    That there was legal unreasonableness in what the Tribunal had done and had expected the applicant to do or say or recall;

b)    That there were irrelevant considerations made by the Tribunal in coming to their findings; and

c)    There was illogicality in the way that they came to their findings.

10    In relation to ground (a) the primary Judge noted:

13.    … the fact is that for there to be jurisdictional error, it must be that the findings that the Tribunal made were simply not open on the evidence. It is not a case of whether the Tribunal, on that evidence, should have made another finding; it is a question of whether they could have made another finding. The fact that the Tribunal has gone through the evidence as it has, illustrates that the finding that it did make was open.

(Emphasis in original.)

11    In relation to ground (b) the primary Judge found that the guide for whether a Tribunal has taken into account irrelevant considerations is whether it has considered something that it is absolutely prohibited from considering. His Honour found that the Tribunal’s consideration of whether the applicant was a target of persecution because of his brother’s activities or his own activities was not a matter that the Tribunal was prohibited from examining.

12    In relation to ground (c) his Honour found that the Tribunal was acting in its fact-finding capacity. The Tribunal had criticised the applicant for not having stated in his statutory declaration that the Awami League targeted the applicant because of his own activities in addition to being associated with his brother and his brother’s activities. The applicant submitted that the Tribunal’s expectation that the applicant can know the mind of the Awami League attackers was illogical. His Honour held that this was not a case of the Tribunal trying to get into the mind of the Awami League, but rather whether or not the applicant had been consistent in his claims.

13    The primary Judge dismissed the application with costs.

Application for extension of time

14    At the hearing on 18 May 2017, the applicant appeared in person and was assisted by an interpreter.

15    In an affidavit filed on 8 February 2017, the applicant states:

I have appeared before the Federal Circuit Court of Australia on 14 November 2016. The honourable Judge Vesta (sic) dismissed by application same day. Due to lack of my English Language, I had a Bengali interpreter before court to assist me. The interpreter told me I have to apply to the Federal Court of Australia but did not tell me time limitation to apply to the Federal Court of Australia. Moreover my lawyer sent me the Federal Circuit Court of Australia Order by email and they also advised me to apply to the Federal Circuit Court of Australia as soon as possible but they did not inform me the time limitation to apply to the Federal Court of Australia. For this reason, I missed the actual time to apply to the Federal Court of Australia and I request to the Honourable Federal Court of Australia to grant me an extension to apply to the Federal Court of Australia.

16    The draft grounds of appeal are significantly different to the grounds of review before the primary Judge, and are as follows:

1.    The Federal Circuit Court Judge erred in law to come to a decision dismissing my application not finding that the tribunal did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party (BNP) prior to my departure from Bangladesh

2.    The Honourable Federal Circuit Court of Australia Judge did not find that there was lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

3.    The Honourable Federal Circuit Court of Australian Judge made errors of jurisdiction not considering the Tribunal’s failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my political belief if I returned to Bangladesh.

4.    The Federal Circuit Court of Australia Judge made error to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

5.    The Federal Circuit Court of Australia Judge erred in not finding that the tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

6.    The Federal Circuit Court of Australia Judge erred in not finding that the tribunal refused my application on the ground that I would face punishment would be completely politically motivated.

7.    The Federal Circuit Court of Australia Judged erred in law not finding that the Tribunal failed to consider that I was discriminated for my political belief. The tribunal failed to consider that I shall be victim of significant harassment for my political belief if I returned to Bangladesh now or in the foreseeable future and my persecution is Convention related.

(Errors in original.)

17    The applicant filed two outlines of submissions. Both addressed the merits of the appeal and provided no further information about the extension of time application. In addition, the applicant told the court through the interpreter that “because of his low level of education and because of the many questions that were – he was being asked in an intimidating way that’s why he was unable to answer all the questions properly”. Other than this, the applicant chose to make no oral submissions at the hearing, relying only on his written submissions.

18    In summary, the Minister submitted:

    The delay is not so insignificant that it does not bear further consideration. The applicant was represented by Counsel at the primary hearing and appears to have been present when the application was dismissed.

    It is not acceptable that the applicant failed to make proper enquiries to determine when the appeal was required to be filed.

    While there is no prejudice to the respondent caused by the delay, the mere absence of prejudice is not enough to justify the grant of extension of time.

    There should be a consideration of the interests of the public at large in relation to allocation of court resources.

    There is no merit in the proposed grounds of appeal.

19    The Minister provided detailed submissions about the proposed grounds of appeal, emphasising that the grounds were not those raised at first instance.

Consideration

20    In considering an application for an extension of time in which to lodge an appeal the following factors set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 are relevant:

    whether the applicant can demonstrate an acceptable explanation for the delay in lodging the application;

    prejudice to the respondent occasioned by the delay;

    the merits of the substantial application;

    considerations of fairness.

21    Compliance with limitations in statutes for filing process is not optional or at the convenience of litigants. Sound policy reasons exist for those time limits, and litigants are expected to abide by them unless they can satisfy the Court that an application for extension of time should be granted. The only explanation for the delay offered by the applicant in this case is that he was unaware of the applicable time limit. A decision adverse to the applicant is very serious from his perspective. Further the Court can be sympathetic to litigants in person, whose first language is not English, and who are in the position of the applicant. However this sympathy has its limits. As the Minister points out, the evidence of the applicant is that he was present when his Honour delivered the primary judgment. There is no reason provided why the applicant could not have identified the relevant time limit on filing an appeal from his Honour’s decision. In my view, the applicant has not given a satisfactory explanation for the delay in bringing the current application.

22    Further, I am not satisfied that the draft grounds of appeal on which the applicant seeks to rely have merit.

23    The applicant in ground 1 does not particularise the basis on which his Honour erred in law. Properly read, in this ground the applicant simply cavils with the findings of the primary Judge and the Tribunal.

24    In ground 2 the applicant cavils with the findings of the Tribunal concerning his claims of physical abuse, and his credibility. As a general proposition, credit findings are findings of fact for the decision-maker (NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]); albeit subject to judicial review (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38]; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [64]). The applicant claims that the Tribunal’s deliberations were characterised by an absence of procedural fairness, for what appear to be the following reasons:

    the Tribunal was heavily dependent on the findings of the Department of Migration and Border Protection and generalised country information; and

    the adverse credit findings were the result of generalising all cases, and hence unfair.

25    In earlier submissions the applicant contended that the Tribunal ignored its undertaking to give the applicant an opportunity to make further written submissions about the inconsistencies in his evidence, however this submission appeared not to be pressed in subsequent submissions filed by the applicant.

26    Examination of the Tribunal’s reasons reveals that the Tribunal considered the claims of the applicant and inconsistencies in his evidence. It was open to the Tribunal to take into consideration the fact that applicant had said nothing in his earlier statutory declaration concerning alleged threats to him because of his political opinion, as distinct from threats to him based on his brother’s political opinion. Similarly, the findings of the Tribunal concerning the applicant’s departure from his family home were open to it.

27    In relation to ground 3, presumably the independent evidence to which the applicant refers is country information. There is no obligation on the Tribunal to invite the applicant to comment on such information: s 424A(3)(a) Migration Act 1958 (Cth).

28    Grounds 4, 5, 6 and 7 substantially repeat the applicant’s contentions in respect of Tribunal findings concerning his credibility and claims of persecution. To that extent the applicant seeks impermissible merits review.

Conclusion

29    The application should be dismissed with costs.

Associate:

Dated:    21 June 2017