FEDERAL COURT OF AUSTRALIA

DEP16 v Minister for Immigration and Border Protection (No 2) [2017] FCA 1528

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an application for extension of time and, should an extension of time be granted, an application for leave to appeal from orders of the Federal Circuit Court: DEP16 v Minister for Immigration & Anor [2017] FCCA 1298. In that proceeding, the Federal Circuit Court judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The Tribunal decision had affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The matter was listed before me on 21 November 2017. At that hearing, the applicant sought an adjournment. I granted the application for adjournment in order to afford him a further opportunity to provide written submissions to the Court: see DEP16 v Minister for Immigration and Border Protection [2017] FCA 1375. Orders were made that if the Court were of the view, after the filing of submissions, that there was a case to answer as to the decision of the Tribunal and/or the decision of the Federal Circuit Court, it would contact the parties to either relist the hearing or require further submissions.

3    Submissions were filed by the applicant on 3 December 2017. The submissions do not provide any grounds for considering that either the Tribunal or the Federal Circuit Court was in error. For that reason, I deal with the matter on the papers.

Background to the matter

4    The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 12 November 2010 on an Offshore Schools Sector (Web) (TU 571) visa and ended his studies in July 2011. The applicant became an unlawful non-citizen on 15 March 2013, and applied for a protection visa on 11 June 2014. The delegate of the Minister refused to grant the applicant the protection visa on 24 April 2015.

The Tribunal proceedings

5    The Tribunal proceedings occurred on 26 September 2016. The Tribunal’s task was to determine whether the applicant was a refugee pursuant to s 36(2)(a) of the Act or was otherwise owed protection by Australia on the basis of the complementary protection criterion in s 36(2)(aa) of the Act.

6    The applicant claimed to have a fear of persecution in China on account of his own Christian beliefs and practices and those of his parents. The Tribunal summarised the written claims contained in the form submitted by the applicant to the Department of Immigration and Border Protection at [10] of its reasons as follows:

a)    As a student he left China to come to Australia to avoid harassment.

b)    He fears being unable to practice and preach his religious beliefs and attend the house church and worship the religious faith.

c)    His parents have been practising Christianity and attending a house church. As the authorities have cracked down on worship and gathering his parents have been targeted by the authorities. The family business has been constantly interrupted, disturbed and watched by the authorities. As a result, the business trading has dropped substantially and therefore it had to be sold below market price to a third party. His parents have suffered harm and persecution. If he returns to China, he will suffer the same fate and believes that the authorities may harm or mistreat him.

d)    As his parents have attended and will continue to participate in the house church and uphold their beliefs, it becomes the authorities’ interest and concern. The authorities therefore will not protect them if they continue to do so.

7    The Tribunal formed an ‘overall impression of the applicant not being a credible witness’ in light of evidence given by him pertaining to his religious beliefs and his delay in applying for a protection visa. It found that his ‘claims were vague, lacked significant detail and from time to time at hearing he changed his answers’. The Tribunal was not satisfied on the evidence that the applicant either practices or preaches Christianity in Australia or that he would do so in China and likewise was not satisfied that the applicant’s parents were themselves Christians. The Tribunal also was not satisfied that the family business was interrupted, disturbed or watched by the local authorities.

8    The Tribunal concluded, having considered the applicant’s claims individually and cumulatively, that the applicant did not meet the refugee criterion or the alternative complimentary protection criterion.

The decision of the Federal Circuit Court

9    The application before the Federal Circuit Court proceeded as a show cause hearing under r 44.12 of the Federal Circuit Court Rules.

10    The grounds in the application before the Federal Circuit Court were as follows:

1.    The Tribunal erred in making its findings without supporting evidence

2.    The Tribunal failed to disclose the country information where [sic] the tribunal has taken into account

3.    The Tribunal failed to invite the applicant to give additional information under s424B

11    In relation to the first ground of appeal, the primary judge found that the findings made by the Tribunal, including those going to the applicant’s credit, were available on the material before it. In considering the second ground, the primary judge found that the review and the credibility findings adverse to the applicant were not determined on the basis of country information and, by virtue of s 424A(3)(a) of the Act, the Tribunal was under no obligation to disclose any country information that may have been used in the decision-making process. In considering the third ground, the judge found that the Tribunal complied with its statutory obligations and its obligations of procedural fairness in the conduct of the review. There was no further statutory obligation which would have required the Tribunal to give the applicant an opportunity to give further evidence.

The application for extension of time and leave to appeal before the Federal Court

12    An affidavit was put on by the applicant, affirming that he did not receive a copy of the Federal Circuit Court judgment (delivered on 16 June 2017) and that he believed that he would be afforded 35 days to appeal after receiving a copy of the reasons. Upon making enquiries with the Federal Circuit Court, the applicant was informed of a Court order dismissing his application, upon receipt of which he ‘immediately’ lodged an appeal on 24 July 2017.

13    An appeal from an interlocutory judgment or order must be filed within 14 days after the date on which the judgment was pronounced or the order was made: r 35.13 of the Federal Court Rules 2011 (Cth). By filing an application for leave to appeal on 24 July 2017, the applicant was 24 days out of time.

14    In considering whether to grant an extension of time, the Court looks to the explanation of the delay and any prejudice that may be suffered, were an extension of time to be granted. In addition, if leave to appeal be granted, the Court must be satisfied that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal and substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

15    In its written submissions, the Minister opposed the granting of an extension of time. The Minister submitted that there has been no persuasive evidence from the applicant of the steps taken by him to learn of his rights of appeal. The Minister acknowledged, however, that similar reasons for delay have been accepted by this Court and that no prejudice would be suffered by the Minister if time were to be extended.

16    In MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203, Mortimer J said at [5]-[6]:

5. The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.

6. Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.

17    In these circumstances, some of the factors suggested by Mortimer J, including unfamiliarity with the Australian legal system and unfamiliarity with the English language may apply to the applicant and explain why the application was not filed in time. However, as Mortimer J went on to say, the “prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised”.

18    I therefore turn to the draft grounds of appeal and written submissions of the applicant.

Ground of the application and submissions

19    The grounds of the application (and draft grounds of appeal) include the following (errors in original):

1. The applicant though he had 35 days to appeal

2. The primary judge erred in dismissed my application under r44.12.

3. The primary judge failed to consider the procedure fairness not afforded in my application processed by the Respondents."

20    The submissions filed by the applicant go to ground 3 (procedural fairness). It is submitted that the applicant was prevented from expressing himself fully at the Tribunal hearing, with the member commenting “she understand you want to say” [sic]. This was submitted to represent an error by reason of the Tribunal’s failure to invite the applicant to give additional information under s 424B of the Act.

21    The applicant also submits that the primary judge failed properly to consider four of the applicant’s submissions at the bar table at the Federal Circuit Court hearing. The applicant submitted the following problems with the way in which the Tribunal considered the matter:

1) The Tribunal applied the general country information to the applicant's claim without taking into [account] individual and specific circumstances.

2) The Tribunal could not negate the applicant's credibility based on the applicant's Bible knowledge.

3) The Tribunal failed to consider the closure of my mother's lotto business by the authority due to her religious belief.

4) The Tribunal failed to consider the fact that the applicant's father was not able to get a job because of the family religious belief.

Consideration

Ground 1

22    Ground 1 relates to the extension of time and has been dealt with above.

Ground 2

23    Ground 2 is directed to the fact that proceedings were dismissed on an interlocutory basis under r 44.12 of the Federal Circuit Court Rules. The fact that the primary judge dismissed the application using the show cause provision is not an error in and of itself. At 310-11 [53] of Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301, the Court said:

53    The pressure of high volume decision making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Part 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process…

24    The primary judge’s reasons reveal at [11] that at the commencement of the hearing, the nature of a show cause hearing was explained to the applicant as well as the fact that, for the application to be successful, the applicant would be required to show a relevant legal error, that being described as ‘either an excess of statutory power or a denial of procedural fairness’. It is unclear from the reasons and submissions whether the meaning of the legal terms ‘excess of statutory power’ or ‘denial of procedural fairness’ was clarified further to the applicant. However, at [13] of the reasons, it is said that ‘(t)he applicant confirmed that he understood the nature of the hearing as explained by the Court’.

25    The primary judge said the following at [21] of his reasons:

21. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

26    This statement was made at the end of the reasons, in circumstances where the primary judge found that the material before the Court disclosed no arguable jurisdictional error.

27    The Minister’s submissions point to the procedural history of this matter, which included a first Court date before a registrar where the applicant was granted leave to file an amended application, evidence and written submissions. The Minister also submitted that while r 44.13(1) of the Federal Circuit Court Rules typically restricts an applicant from making arguments that fall outside grounds set out in the application, the primary judge allowed the applicant to make further submissions at the bar table, for example, a submission regarding a failure to take account of the laws in China. It is submitted that in contrast to the matters in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; 229 FCR 317, the procedural history of the matter indicated its suitability for a show cause hearing.

28    In this case, the applicant was afforded procedural fairness both in the lead-up to the hearing and at the hearing itself, in the sense that he was given a full opportunity to raise any concerns either through an amended application or the making of written and oral submissions.

29    In these circumstances, no jurisdictional error can be identified.

Ground 3

30    Ground 3 concerns whether or not procedural fairness was afforded to the applicant by the Tribunal or Federal Circuit Court.

31    In his written submissions, the applicant says the Tribunal member’s comment “she understand you want to say” [sic] prevented the applicant from giving additional information to the Tribunal. While I do not have the transcript of the Tribunal proceedings before me, this submission regarding a remark from the Tribunal Member does not give rise to legal error. It was clear from the Tribunal’s reasons that the applicant was invited throughout the hearing to give evidence on a range of relevant information. Further, the applicant has not specified those aspects of his claim that he was prevented from giving in evidence to the Tribunal.

32    The applicant submits that the Tribunal applied the general country information to the applicant's claim without taking into account ‘individual and specific circumstances’. Looking at the reasons as a whole, the primary judge was correct in his conclusion that ‘this was a case where the Tribunal made adverse credibility findings in determining the applicant’s claims and the review was not determined on the basis of country information’. The Tribunal was not satisfied on the evidence that the applicant practices or preaches Christianity in Australia or that he would do so in China, and on that basis, it did not appear to consider it necessary to have recourse to the relevant country information assessment in its reasons.

33    A further written submission of the applicant concerns the Tribunal’s failure to consider the closure of his mother's lotto business by the authorities and his father’s inability to find employment due to their religious beliefs. At [29] of its reasons, the Tribunal referred to the applicant’s evidence as regards the employment position of his parents:

The Tribunal again asked the applicant how his parents are been constantly interrupted, disturbed and watched by the authorities. He answered saying that his father lost his job in 2011 and his mother’s lottery stall was affected in 2013. The Tribunal asked the applicant why he thought it was related to their house gatherings. The applicant did not answer except to say they have been unable to find new jobs.

34    The reasons of the Tribunal reveal that it did consider this information, and was not satisfied that the applicant’s parents work or business was constantly interrupted, disturbed or watched by the authorities. This conclusion was reasonably open to the Tribunal on the evidence before it, and in this respect neither the Tribunal’s reasons nor the Federal Circuit Court decision disclose any error that goes to jurisdiction.

35    A further submission takes issue with the fact that the Tribunal used the applicant's apparent lack of knowledge of the Bible to make credibility findings. At [19], the Tribunal summarised this part of the evidence as follows:

The Tribunal asked the applicant about the most significant Christian event for him. He asked what was meant by the question. The Tribunal re-put the question differently. He answered saying that Christmas Day is of significance because of human beings being existent. He was asked how many gospels there and he said he did not know but offered that the Bible contains the New and the Old Testament. When the Tribunal asked him to indicate a significant feature of the New Testament he said it tells us that because of the Lord, there is a world and us. The Tribunal asked if the applicant knows the name of any of the Gospels. He said they are generally called chapters. He asked if the Tribunal was referring to anything else and said he does not know very much.

36    The answers given by the applicant to these questions appear to have informed the Tribunal’s conclusion that ‘he displayed no knowledge of Christianity’.

37    The possibility of legal error would be raised if an applicant’s credibility in relation to evidence of his or her faith were cast into doubt solely on the basis of the applicant’s inability to answer a series of quiz-style questions about different aspects of his or her claimed religion. Some of the questions posed by the Tribunal in this hearing, for example asking the applicant to recall the number of Gospels in the Bible and to name them, would have been inappropriate if used in isolation to establish whether the applicant was of Christian faith.

38    It is clear from the Tribunal’s reasons that in forming its view that the applicant neither practices or preaches Christianity, it also considered the applicant’s evidence on his family’s and his own practices in relation to Christianity as well as the fact that he told the Tribunal that ‘he does not have a strong belief and the claim was for his parents’.

39    The conclusions reached by the Tribunal with regard to the applicant’s credibility were reasonably open on the totality of the evidence before it.

Conclusion

40    For the above reasons, the applicant has not raised an arguable case that either the Tribunal or the Federal Circuit Court fell into error. On that basis, the application for an extension of time in which to file and serve an application for leave to appeal should be dismissed. If I had granted it, for the same reasons I would have dismissed the application for leave to appeal.

Associate:

Dated:    15 December 2017