FEDERAL COURT OF AUSTRALIA

DEM16 v Minister for Immigration and Border Protection [2017] FCA 1115

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for an adjournment made orally on this day is refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant, and it is a moot point as to whether he is correctly termed an appellant, as opposed to an applicant for leave to appeal, is a citizen of Bangladesh. He arrived in Australia on 20 March 2013, via Thailand and Malaysia. On 20 June 2013, he applied to the Minister for Immigration and Border Protection (Minister), under the Migration Act 1958 (Cth), for that class of visa known as a protection visa. His claim was that his family was persecuted by the Awami Party because of his and his brother’s support of the Bangladesh Nationalist Party, then in opposition.

2    His claim was, further, that persons unknown to him and his family would come into his family’s shop and take goods without paying or damage goods whilst intoxicated. His claim was that he had been threatened in the shop by seven Awami League members carrying hockey sticks, the threats being on the basis of his brother’s political activities. That application was refused by a delegate of the Minister. The appellant then sought the review of the refusal decision by the Administrative Appeals Tribunal (Tribunal). On 27 April 2016, for reasons published by the Tribunal that day, the Tribunal decided to affirm the Minister’s delegate’s decision.

3    On 16 May 2016, the appellant applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision. That application was allocated the file number BRG435 of 2016 by the Federal Circuit Court. The appellant had the benefit, via a pro bono scheme, of legal representation in respect of that judicial review application. In the result, by a notice dated 23 August 2016, filed in the Federal Circuit Court, the appellant, by his solicitors, discontinued judicial review application BRG435 of 2016.

4    The appellant later filed in the Federal Circuit Court a further judicial review application in respect of the Tribunal’s decision. That application was filed on 25 October 2016. It was allocated the file number BRG991 of 2016. On 3 March 2017, for reasons delivered orally that day, the Federal Circuit Court made the following orders.

(1)    The application filed on 25 October 2016 be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001.

(2)    The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3606.00.

5    The appellant has now appealed, or at least purported to appeal, against those orders. There is one ground of appeal, which is in these terms: “His Honour Judge Jarrett made a finding of facts on an important issue which could not be supported by the evidence”.

6    The appellant applied at the outset of the proceeding for an adjournment of the hearing. He did so on the basis that he needed more time and wished to have funds to obtain the services of a lawyer. This application was opposed by the Minister on two bases. The Minister pointed to the date of filing of the appeal, namely, 21 March 2017 and submitted that the appellant had had many months within which to seek to obtain legal advice and prepare for his appeal.

7    The Minister pointed to an absence of evidence by affidavit or otherwise as to what endeavours had been made in the months that had passed since the filing of the notice of appeal. The Minister further drew attention to the fact that the evidence referenced an affidavit of Ms Thomas that the discontinuance of BRG 435 of 2016 in the Federal Circuit Court had been on the basis of legal advice that the applicant’s case had no reasonable prospect of success. I indicated to each of the parties that I considered it necessary and appropriate also to take into account the prospective merits of the appeal.

8    I invited each of them to make submissions as to those merits on the basis that those submissions would stand as submissions on the appeal if I decided not to grant the adjournment. In response, the appellant did not enlarge upon or seek in any way to particularise the ground of appeal. The Minister offered a summary of submissions earlier made by him in writing. The essence of these submissions was that the Tribunal’s reasons disclosed a permissible evaluative judgment in respect of the appellant’s credibility with respect to his claim for a visa. The Minister submitted that the learned primary judge, Jarrett J, had correctly so characterised the Tribunal’s decision and reasons.

9    I raised with the parties as to whether the appeal was, in any event, competent or needed to be the subject of a grant of leave. It is not necessary, finally, to decide that point in order to resolve the present proceeding because, even if leave were required, it would be a relevant consideration to have regard to the prospective merits of the proposed appeal.

10    Some reference, though, needs to be made to why it is a moot point as to whether the appeal is competent. Subject to exceptions which are not presently material, this court has jurisdiction to hear appeals from the Federal Circuit Court: see s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). A qualification in respect of that jurisdiction is materially that an appeal shall not be brought from a judgment that is an interlocutory judgment unless a court or a judge gives leave to appeal: see s 24(1A).

11    By s 24(1D), certain judgments are taken to be interlocutory judgments for the purposes of s 24(1A). One type of judgment of the Federal Circuit Court that is taken to be an interlocutory judgment for the purposes of s 24(1A) is a judgment of that court under s 17A of the Federal Court of Australia Act: see s 24(1D)(ca). But the Federal Circuit Court did not, on the face of its order, act under s 17A. Rather, it acted under an alternative source of power to dismiss found in r 13.10 of the Federal Circuit Court Rules 2001 (Cth). Having regard to the terms of the Federal Circuit Court’s order and the reference in it to that Rule read in light of the reasons for judgment, it appears, to me, that the Federal Circuit Court dismissed the application on the basis that it was an abuse of process. An order dismissing the proceeding as an abuse of process is an interlocutory judgment: see Zegarac v Rambaldi [2010] FCA 219 at [32].

12    The Federal Circuit Court also, alternatively, approached the application on the basis that it was to be regarded as an application for an extension of time within which to seek the judicial review of the Tribunal’s decision. A refusal of an extension of time would also be an interlocutory judgment. In each instance, though, the Federal Circuit Court’s treatment of the application was informed by that court’s assessment of the prospective merits of any judicial review application and, as I have already stated, that court formed the view that the Tribunal’s decision was a permissible, rationally reasoned credibility assessment not disclosing jurisdictional error. Regard to the Tribunal’s reasons discloses that the credibility assessment was based upon inconsistencies which the Tribunal highlights in its reasons.

13    Before the Federal Circuit Court, an endeavour was made to explain, by reference to medical evidence, that the inconsistencies to which the Tribunal referred were really the product of a particular stress condition suffered by the appellant, but as that court correctly observed, the place for the introduction of such explanatory medical evidence was before the Tribunal. That court correctly decided that judicial review did not entail a re-determination of the factual merits of a review application. The record also discloses that the appellant had the benefit of representation in the Tribunal proceedings. While there is no formal onus of proof in a review proceeding before the Tribunal, it is in the interests of an applicant to introduce before the Tribunal such material supportive of his claim as he is disposed and able to.

14    The role of the Tribunal is that of review, not of making a case for an applicant and as the Tribunal here correctly understood, the Tribunal is not obliged to accept uncritically an applicant’s claims. The result is that I am not satisfied that there is any reason for the granting of an adjournment. The appellant has had many months within which to prepare for this appeal and to seek, if possible, legal representation.

15    As to the merits of the appeal, the appeal ground is vaguely stated and remains so after the appellant’s oral submissions. In the prevailing circumstances, it was open to the Federal Circuit Court to conclude that the second proceeding, namely, BRG 991 of 2016, was an abuse of process.

16    Further, the merits prospectively of the judicial review application in any event and for reasons which I have highlighted already was such as permissibly to warrant a refusal of an extension of time. This is just a case where for reasons which are logically expressed the Tribunal did not accept on the basis of inconsistencies and a consequential credibility finding the basis of the claim for the visa. For these reasons, and even though the appeal may not be properly constituted because of an absence of a grant of leave, the appeal is dismissed. Were it necessary for there to be a grant of leave, and it may well be, I would not be disposed for the reasons which I have given in relation to the merits to grant leave in any event.

17    The Minister made an application for costs. This was opposed by the appellant on the basis of an asserted inability to pay. An inability to pay is no reason to refuse to an applicant for costs an otherwise warranted order for costs. There is no reason why costs should not follow the event.

Associate:    

Dated:    19 September 2017