FEDERAL COURT OF AUSTRALIA

CKF16 v Minister for Immigration and Border Protection [2017] FCA 1492

ORDERS

THE COURT ORDERS THAT:

1.    the application for leave to appeal be dismissed;

2.    the appeal be dismissed as incompetent; and

3.    the appellant pay the respondent's costs fixed in the amount of $1,756, to be paid within three months of the date of this order.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    At the conclusion of the hearing of this matter, I ordered that the appeal be dismissed with costs fixed in the amount of $1,756 such amount to be paid by the appellant to the Minister within three months. However I did not, at that time, give reasons. I now do so.

the appellant’s claim

2    The appellant, a citizen of Bangladesh, entered Australia on 6 May 2013. He is an unauthorized maritime arrival. He subsequently applied for a subclass 866 (protection) visa. By letter dated 30 October 2014, he was advised that the delegate (the “delegate”) of the first respondent (the “Minister”) had refused his application. The appellant applied to the second respondent (the “Tribunal”) for review of that decision. The Tribunal affirmed the decision. The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision. On the appointed hearing date, the appellant did not appear in the Circuit Court, personally or by a legal representative. The Circuit Judge dismissed the application and awarded costs in favour of the Minister. The Tribunal has submitted to any order which this Court may make, save for any order as to costs.

3    These proceedings are in the form of an appeal from the decision of the Circuit Judge. However, pursuant to the rules of the Circuit Court, the order is interlocutory so that any appeal must be by leave. The Minister has, in effect, agreed to the appeal being treated as an application for leave to appeal. He opposes the grant of leave.

4    In the delegate’s reasons the appellant’s claims are set out at para 8 as follows:

The [appellant's] written claims are on Department of Immigration and Border Protection (department) file CLF2013/197811 from folio 40 to 42. The [appellant] attended an interview before me on 2 October 2014.

The [appellant’s] written claims are summarised below:

•    In 2003 the [appellant] was working as a construction subcontractor, supervising between 10 and 15 people. While working as a supervisor he earned approximately 70 000 - 80 000 taka a month.

•    After work one day in 2003 a man named Shagor, who was a known member of the Bangladesh National Party (BNP), extorted the [appellant] for 20 000 taka.

•    In 2009 the [appellant] was told by his family that Shagor was again trying to extort him, although this time Shagor wanted 3 million taka.

•    The [appellant] was afraid that if he didn't give Shagor the money he would be killed, as Shagor had killed other people in the village.

•    The [appellant] left Shahpur to stay with his aunt in Shoniakra, Dhaka.

•    His aunt advised him that it would be safer if he left the country, and with the help of a friend he travelled to Malaysia where he lived from 2009 to 2013.

•    The [appellant] fears that he will be detained and tortured, extorted, abused and killed.

•    The [appellant] fears that if he returns to Bangladesh he will be harmed by the Bangladeshi authorities and Shagor.

•    The [appellant] fears that this harm will be due to his membership of the particular social group (PSG) 'villagers making a decent income, making us vulnerable for extortion'.

•    The [appellant] fears the authorities and claims they will not protect him.

During the interview the [appellant] made similar claims. However the [appellant] made a number of additional claims which are outlined below:

•    Shagor extorted the [appellant] three or four times in 2003, for approximately 30 000 taka, which he paid twice. Shagor said that if the [appellant] did not pay, [appellant] would be killed.

•    Between 2003 and 2009 sometimes Shagor 'would appear and he used to make threats'.

•    The murders Shagor committed were not publicised in the newspapers, but they were reported to the police. As a consequence Shagor was arrested, but was later released.

•    Since the [appellant] arrived in Australia, Shagor has been arrested by the Rapid Action Batallion (RAB).

•    The [appellant] is afraid of extortion by 'all the various [political] parties, the Awarni League (AL) and BNP'.

•    The [appellant] cannot move to another part of Bangladesh because Shagor, or Shagor's friends, will find him.

the decisions of the delegate and the tribunal

5    The delegate was not satisfied that the appellant, if returned to Bangladesh, would face a real chance of being persecuted for a Convention reason. It also was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there would be a real risk that he would be subject to significant harm. The Tribunal reached similar conclusions, largely based upon its rejection of the appellant’s evidence.

the application to the circuit court

6    In his application for judicial review in the Circuit Court, the appellant advanced the following grounds:

1.    The [appellant] is a citizen of Bangladesh.

2.    The [appellant] claimed that Australia owed protection obligations in respect of him.

3.    That the decision of the [Tribunal] was affected by legal error.

4.    Relevant information not considered.

7    It appears that the only other material placed before the Circuit Judge by the appellant was a copy of the decision of the Tribunal. As I have said, the appellant did not appear at the hearing. In those circumstances the Circuit Judge dismissed the application upon the ground of non-appearance as contemplated by r 13.03C of the Federal Circuit Court Rules 2001 (the “Circuit Court Rules”).

8    The grounds of appeal from the decision of the Circuit Court to this Court are identified as:

1.    The [Tribunal's] decision affected by jurisdictional error.

Particulars:

The [Tribunal] failed to consider a claims or integer of claims and failed to consider whether [appellant] had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the [appellant] procedural fairness by reaching conclusions that the [appellant] is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the [appellant] had fear of persecution in his own country of residence.

2.    The [Tribunal] made findings without evidence. The [Tribunal] rejected the [appellant’s] evidence before the Tribunal and failed to believe the [appellant] as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

Particulars:

The [T]ribunal in her decision records and interview records failed to consider any evidence put by the [appellant] as credible, believable without any evidence. The honourable member has discredited the evidence just only the [appellant’s] inability to remember or recall various issues and the dates at the time of hearing.

9    Clearly, these grounds do not address the decision made by the Circuit Judge. They also go beyond the grounds of review initially advanced in the Circuit Court. In these proceedings the appellant has filed an affidavit asserting that:

2.    The Federal Circuit Court of Australia did not give any weight to the supporting documents which I lodged before the Court in support of my claims.

3.    The Federal Circuit Court of Australia failed to uphold my natural justice.

10    As far as I can see, the appellant does not address the competence of his appeal or the basis upon which his application was dismissed. The course adopted by the Circuit Judge was in accordance with the Circuit Court Rules. The decision of the Full Court in Applicant NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406 supports the proposition that such an order is interlocutory. Further, pursuant to r 16.05(2)(a) of the Circuit Court Rules, the appellant could have applied to set aside his Honour’s order but did not do so.

11    I proceed upon the basis that the decision was interlocutory. The Minister resists leave to appeal on the ground that there is no manifest error in the exercise of the discretion by the primary Judge. The Minister further submits that on an application for leave to appeal the Court will consider whether, in all the circumstances, a judgment at first instance is attended by sufficient doubt as to warrant its being reconsidered, and whether any substantial injustice would result if leave were refused, supposing the decision to be wrong. The Minister submits that the appellant has not provided any explanation whatsoever for his failure to attend the hearing before the primary Judge. He further submits that no jurisdictional error by the Tribunal has been demonstrated.

12    The appellant appeared before me. When asked to indicate any error by the primary Judge, the appellant said that he had been unable to retain a lawyer. I explained to him that he would need to explain his failure to appear in the Circuit Court and demonstrate that any appeal would have some prospects of success. He said that he, “did not find the Court credible”, apparently referring to the Circuit Court. He then said that he had been physically assaulted in Bangladesh. He also claimed to “feel” that the Tribunal had made an error in its judgment, had not given him a fair hearing, and had not given due consideration to his argument. He then said that he felt, “too stressed to talk about it much”.

13    Clearly, the Tribunal rejected the core elements of the appellant’s case, based upon a rejection of his evidence on credibility grounds. It follows that he has no prospects of making out the proposed grounds, including those in his affidavit filed on 29 May 2017. Given the appellant’s failure to offer any explanation for his failure to appear in the Circuit Court, and the lack of any merit in his proposed grounds of appeal, the appeal is dismissed as incompetent.

14    The Minister seeks an order for costs but concedes that his notice of objection to competency was not filed within the time specified in r 36.72 of the Federal Court Rules 2011 (the “Federal Court Rules”). Rule 36.72(4) provides that:

If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.

15    The Minister submits that where a notice has been filed out of time, r 36.72(4) does not necessarily preclude him from obtaining an order for costs. That proposition seems to assume a favourable exercise of discretion pursuant to r 1.32, r 1.34, r 1.35 or r 1.39 of the Federal Court Rules.

16    Rule 36.72 is designed to facilitate the speedy and economical termination of incompetent appeals. Unless an appellant accepts that his or her appeal is incompetent, there will inevitably be a hearing concerning that issue. In a migration case, where an appellant is unrepresented, it would be unrealistic to expect him or her to concede the alleged incompetence. Hence, through no fault of the Minister, a hearing will be almost inevitable. In those circumstances, it seems reasonable that the Minister, if successful, should have his costs of appearing to deal with that question. Although it might not be strictly applicable, I consider that the amount specified in item 15 of Sch 3 to the Federal Court Rules is appropriate in the present circumstances. I allow the appellant three months from today in which to pay such amount. The appellant’s only opposition to any such order is upon the basis that he is unemployed. That is not a persuasive ground for refusing to make an order. Having regard to r 1.35 of the Federal Court Rules, I order that the appellant pay the first respondent’s costs fixed at $1,756.

Associate:

Dated:    8 December 2017