FEDERAL COURT OF AUSTRALIA

SZTUR v Minister for Immigration and Border Protection [2017] FCA 1570

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time and leave to appeal filed on 15 September 2016 is dismissed.

2.    The applicant pay the costs of the first respondent of and incidental to the application to be taxed or as agreed.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an application for an extension of time and leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) made on 17 August 2016 (“the primary judgment”): SZTUR v Minister for Immigration & Anor [2016] FCCA 2529.

2    The procedural history of the matter is this.

3    On 22 January 2014, the applicant commenced proceedings in the Federal Circuit Court in which she sought judicial review of a decision of the Refugee Review Tribunal (the “RRT”) affirming a decision made by the Minister’s delegate to refuse her a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”). The application was listed for first review before the Federal Circuit Court on 24 February 2014 and adjourned to a callover on 26 June 2014. The applicant attended the Federal Circuit Court on the callover date and the matter was listed for hearing on 18 August 2015. However, on 27 April 2015, the Court wrote to the applicant at an address initially advised by her to the Court and informed her that the hearing date had been changed from 18 August 2015 to 10 June 2015. There was no appearance by the applicant on 10 June 2015 and the matter was stood over to 16 June 2015. There was no appearance by the applicant on 16 June 2015 and on that date the Minister’s representative applied for an order dismissing the judicial review application. The proceeding was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) on 16 June 2015.

4    On 16 June 2015, the applicant filed an application under r 16.05(2)(a) of the Rules (a “reinstatement application”) by which she sought an order setting aside the order of 16 June 2015 by which her judicial review application had been dismissed.

5    In support of her reinstatement application, the applicant relied upon her affidavit affirmed on 9 June 2016 in which she said this at para 2 of her affidavit:

I failed to attend the hearing scheduled in June 2015 before Federal Circuit Court Judge Cameron because I did not receive any letter from the court for a hearing which was re-scheduled at a later date which I didn’t know after I had moved to other place and forgot to advise the court of my new address. I didn’t know what to do and I was too scared to go to the court after I failed to attend the hearing because I thought that Judge [Cameron] would order the Immigration to send me back to Nepal at that time. I have been suffering from depression which affects me a lot and I am having difficulty in my daily life.

6    In her affidavit at para 3, the applicant re-asserts her claim of jurisdictional error on the part of the Tribunal.

7    It ought to be noted that despite the statutory review of the decision of the Minister’s delegate being conducted before the RRT, the functions of the Tribunal later became functions to be discharged by the Administrative Appeals Tribunal (the “AAT”). The AAT was the second respondent in the proceedings in the Federal Circuit Court and is the second respondent to the present appeal. A reference in these reasons to the “Tribunal” is a reference to both the RRT and the AAT.

8    As to the factual contentions asserted by the applicant at para 2 of her affidavit as quoted at [5] of these reasons, the primary judge made these observations at [7] and [8] of the primary judgment:

7.    The applicant was cross-examined on her affidavit and also questioned by the Court on an apparent inconsistency. The inconsistency was that on 11 June 2015 the Court wrote by express post to the applicant at her then – new and current address, advising her of the 16 June 2015 hearing date. The Minister’s solicitors also wrote to the applicant at that address on that date, advising her of the new hearing date. In her oral evidence the applicant conceded that she was living at the address in question on the date the letters were sent.

8.    The applicant’s submission and evidence was that she did not receive either of the letters of 11 June 2015. When, at the hearing, the applicant’s explanation of her claim to not have received written advice of the new hearing date was shown not to be plausible, the fundamental position she pressed was that she simply had not received either letter. On balance, however, I find that the two letters were, notwithstanding the applicant’s evidence, received by her. I do not accept the applicant’s evidence that she did not receive at least one of the letters sent on 11 June 2015. It follows from that conclusion that I find the applicant was aware of the hearing date on 16 June 2015 and, for reasons which have not been explained, failed to attend. I find that the applicant has not provided a satisfactory explanation of her failure to attend the hearing on 16 June 2015.

9    Thus, for the reasons indicated, the primary judge found that the applicant had not provided a satisfactory explanation for her failure to attend the hearing on 16 June 2015.

10    Notwithstanding that finding, the primary judge nevertheless examined the question of whether the applicant had demonstrated any reasonable prospects of success should the judicial review proceeding be reinstated, as sought. The primary judge found that the applicant had failed to demonstrate any reasonable prospects of demonstrating that the Tribunal had fallen into jurisdictional error in the exercise of the statutory review function.

11    In the course of addressing the application to this Court for an extension of time and leave to appeal, I will address, later in these reasons, aspects of the relevant background facts, the Tribunal’s findings and the findings of the primary judge.

12    The applicant requires leave to appeal from the judgment and orders of Judge Cameron of 17 August 2016 because the judgment is interlocutory in nature: s 24(1A), Federal Court of Australia Act 1976 (Cth) (the “FCA Act”); Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3]. Rule 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 or the order was made. The orders were made and the judgment pronounced on 17 August 2016. The application for leave to appeal was required to be filed by 31 August 2016. The application for leave to appeal was filed on 15 September 2016 and thus the application is 15 days out of time.

13    In determining whether an extension of time to seek leave to appeal ought to be granted, the Court will have regard to three factors. First, whether the applicant has provided an acceptable reason for the delay in filing the application for leave to appeal within time. Second, whether the respondent will suffer any prejudice should an extension of time be granted. Third, whether the applicant has demonstrated that the grounds she seeks to agitate on appeal have any demonstrated merit.

14    As to the extension of time, the Minister concedes that no prejudice can be identified should an extension of time, in this case, be granted.

15    In determining whether the Court ought to grant leave to appeal (should the Court be satisfied about the extension of time question), the Court will consider whether the applicant has shown sufficient doubt about the correctness of the primary judgment in dismissing the reinstatement application so as to warrant review, and the Court will consider whether substantial injustice would be suffered by the applicant if leave to appeal were refused, assuming the primary judgment reflects error. As to these principles, see the thorough discussion in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [25]-[37], Dowsett, Foster and Yates JJ.

16    As to the principles governing an application for reinstatement before the Federal Circuit Court, the following observations of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]-[10], ought to be noted:

7    In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

(emphasis added)

8    In this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim: see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320.

9    It should also be observed that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted. However, I do not perceive that the application of those requirements – first, that the decision in question be attended by sufficient doubt to warrant its reconsideration, and, secondly, that substantial injustice would flow were leave not granted (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, per Sheppard, Burchett and Heerey JJ, at 398) – would result in any different outcome in this case.

…

10    It follows from what I have said that the decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles stated as follows by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, at 504 to 505, where their Honours said:

But the judgment complained of, namely, sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance.

Background

17    The applicant, a 27 year old citizen of Nepal, entered Australia on 3 January 2012 on a tourist visa (subclass 676), which was valid for three months. On 28 March 2012, she applied for a Protection (Class XA) visa.

18    On 10 October 2012, a delegate of the Minister refused the application. On 30 October 2012, the applicant applied to the Tribunal for a review of that decision. On 18 November 2013, the applicant appeared before the Tribunal and, on 27 November 2013, provided the Tribunal with a written statement. On 24 December 2013, the Tribunal affirmed the decision of the delegate. On 22 January 2014, the applicant sought judicial review of the Tribunal’s decision.

19    The applicant’s claims for protection involve, broadly speaking, a contended fear of harm from the Maoists in Nepal and also from a former partner (henceforth referred to as “X”) who, the applicant alleges, became “physically and emotionally abus[ive]” and used the applicant as a “sex slave” (see the applicant’s “statement in support of my claims for a refugee status”; Court Book, p 27).

20    In relation to the contended fear of harm at the hands of Maoists, the applicant makes the following claims.

21    In September 2007, she became involved in the Nepali Students’ Union (which is affiliated with the Nepali Congress Party). The applicant went on to join the Nepali Congress Party in March 2009. The applicant was said to have, “[i]n the course of her political activities”, been asked by the Maoists to “give up her memberships”, however, she refused and so was threatened with harm: Tribunal’s reasons at [6].

22    The applicant also claims that about six months after joining the union, “three Maoist girls and four or five Maoist boys” told her to join the Maoists and, again, threatened her with violence. She was also approached on subsequent occasions, about “three or four times”, and was threatened. The applicant, on her evidence, elected not to report this to authorities, having been told by the Congress Chairman that “she should not worry”: Tribunal’s reasons at [10].

23    The applicant further claims that she is a member of the Nepali Congress Party in Australia and attended “four or five meetings when not working”: Tribunal’s reasons at [10].

24    As far as a contended fear of harm at the hands of her former partner, X, is concerned, the applicant claims that she wanted to become “financially independent from [her] parents” and, so, in June 2011 interviewed for a job and “got to know a man [the interviewer]” with whom she subsequently became romantically involved (at least at first): Tribunal’s reasons at [12]; see also Court Book, p 27. Sometime later she began living with X but by November 2011, the applicant discovered that he had a wife and children. It is said, by the applicant, that when she tried to leave him (Court Book, p 27):

… He refused me and threatened me to kill if I did not obey him. When I refused him he hurt me and threatened me to kill. …

25    According to the applicant, two or three days after she was threatened she reported the matter to authorities but “they did not follow up the matter”. The applicant attributes the unwillingness of the police to take the matter further to, in all likelihood, the payment of a bribe by X: Court Book, p 28.

26    The applicant also claims that a week after she discovered X was married, he locked her in a room for three months and used her as a sex slave, however, “after he started torturing her, she started acting nicely towards him” and was therefore permitted to use the telephone. It was at this time that she was able to contact her sister in Australia and make arrangements to join her, in Australia: Tribunal’s reasons at [15].

27    Insofar as her relatives in Nepal are concerned, the applicant claims that: she did not leave X and return to her family because he would have harmed them; X had let people know that the two of them were living together and her conservative parents had consequently been angry and not visited; and, she had not telephoned her family (in Nepal) because they had been angry with her for living with a man from a different caste.

The Tribunal’s Findings

28    The Tribunal, in assessing the applicant’s claims for protection, made the following findings.

29    Although accepting that the applicant had indeed been involved with the student union, the Tribunal nevertheless “[did] not accept that she had a significant role in the union”. The Tribunal expressed “some concerns about [the applicant’s] evidence that she had joined the Nepali Congress Party”, due in large part to her inability to recall certain details about the Party, its political activities (and principles) and the like, however, was “prepared to give [the applicant] the benefit of the doubt”. The Tribunal also took the view that she had joined the Nepali Congress Party in Australia: Tribunal’s reasons at [27].

30    The Tribunal “[did] not accept that she wanted a career in politics or that she has had or ever will have any deep involvement in politics”, pointing to the applicant’s “very basic” level of knowledge on Nepali politics as well as not accepting that “she could not have found a course more closely aligned with politics than fashion” (which was her chosen area of study while in Nepal): Tribunal’s reasons at [28].

31    The Tribunal, while accepting the applicant’s evidence that she was approached by Maoists and that they had indeed threatened her, it “[did] not accept that the applicant had a genuine fear of serious harm from the Maoists despite these threats” and “[was] not satisfied that [the applicant] had a fear of the Maoists then, nor that she does now”: Tribunal’s reasons at [29].

32    Regarding the second aspect of the applicant’s claims, namely the fear of harm from X, the Tribunal accepted that the applicant entered into a relationship with the man and that “she felt that she had been deceived”, however, it was not prepared to accept that (Tribunal’s reasons at [30]):

… he threatened to kill her, hurt her or locked her in a room for three months or any lesser time, sometimes leaving her food for a week, and taking away her mobile phone, or that she was made to be a sex slave … [nor] that she had no contact with her family or friends or that she went to the police.

33    The Tribunal then set out the reasons for those particular findings, which are included in full below.

31    Firstly, the dates do not make sense. She told the Tribunal she was at fashion college until the end of her third semester, when she came to Australia (also in her statement to the Department she stated that she was at Namuna College of Fashion Technology from July 2010 to January 2012). She came to Australia on 3 January 2012. Yet she also said she was locked in a room for three months from November 2011 when she discovered that [X] was married. She said that during those three months she was not able to work or go to college. However earlier in the hearing when asked by the Tribunal why she did not finish her course, she said it was because she came to Australia. Furthermore, her visa was granted in September 2011 indicating that she applied earlier than when she says she found out he was married. These descriptions of what occurred were vague and contradictory, thereby indicating that she was not telling the truth. Therefore the Tribunal does not accept that she was locked in a room from November, (or even an earlier date if she has the dates confused) when she was at college.

32     Secondly the Tribunal does not accept her evidence that she could not have approached family members, her aunt or friends or other colleagues for assistance. She told the Tribunal that [X] said he would harm her family if she contacted them. The Tribunal does not accept this evidence as it was introduced for the first time at the Tribunal hearing, and as it is key to her claims the Tribunal does not accept it would not have been introduced earlier. She also said that her family was angry as [X] had created a rumour she was living with a married man and her parents were conservative. The Tribunal does not accept that she could be locked in a room for three months without anyone worrying about her, enquiring or searching for her. She mentioned a friend who had alerted her to [X] being married and it is likely she knew other people as well as her family. The Tribunal does not accept that her family or friends, even if disappointed that she had a relationship with a married man from another caste, would not try and find her, assist her if she had been kidnapped or was being abused. She claimed to the Tribunal that they may have been looking for her, but she does not know. In the Tribunal’s view, this is not feasible, if people were looking for her, they would have let her know when finally she did appear.

33     Thirdly, and very significantly, the applicant did not tell the Department in her statement that she was locked in a room for three months. At the Departmental interview she said she was locked in the room sometimes. She also made some contradictory statements to the Department about where she was living during this time. The Tribunal accepts that she may have been depressed and nervous when making her statement or talking to the Department as claimed, however she was able to recount many other facts, and the Tribunal does not accept that she would omit such a key aspect of her claims. The Tribunal is of the view that this aspect of her claims has been fabricated to bolster her claims.

34     Fourthly, she arranged a visa with assistance from her sister in Australia, to come to Australia although she claims that she had no mobile telephone while locked in the room. When asked how this was possible, she said that she started being nice to [X] and he then allowed her to use the home telephone which had some kind of lock on it to limit her use. The Tribunal does not accept that there was a lock on the telephone or that she was only allowed to use it for her visa application. Once [X] was allowing her to use the telephone or to leave the house to arrange visa and air tickets, she could have taken the opportunity to access help through her family, friends or the police, but she did not do so. Nor does the Tribunal accept as feasible that [X], if he was the kind of person who locked up a woman for three months or forced her to be a sex slave, would allow her to travel on her own to Australia. She said that she told him she was pregnant and this led to him allowing her to depart. The Tribunal does not accept that if he was the kind of person who kidnapped her to control her, he would then let her leave to come to Australia.

35     Fifthly, she was granted a visa for Australia on 8 September 2011 but left on 3 January 2012. She explained to the Department that this was because she could not find an aeroplane ticket. She later said [X] wanted to spend New Year with her, which is the same explanation she provided to the Tribunal. The Tribunal does not accept that she would not have left at the earliest opportunity if she had a genuine fear of him. She has said that he listened to her if she was nice to him, so that she could have persuaded him or found a way to leave earlier if she had a genuine fear.

[emphasis added]

34    For these reasons, among others, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the “Refugees Convention” (s 36(2)(a) of the Act) nor was it satisfied that substantial grounds subsisted for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer “significant harm” (s 36(2)(aa) of the Act), as defined (see ss 36(2A) and 36(2B)).

The Primary Judgment

35    On appeal to the Federal Circuit Court, the applicant set out, as her “Grounds of application”, the following matters:

1    I am a citizen of Nepal and I am a genuine refugee because I have a well-founded fear of persecution for reasons of my political opinion and membership of a particular social group. I believe that the decision in my case has involved an error of law.

2    I argue that the use of evidence and information by the Refugee Review Tribunal Member is illogical in considering the circumstances of my safety in Nepal. I told the truth that the Maoists harassed me on many occasions and they also threatened to harm me if I continued to support the Nepali Congress Party and deny supporting and joining the Maoists. The Tribunal member was assuming the same level of political knowledge, and procedural systems that people enjoyed in Australia was found in a country of Nepal’s third world status. I was fortunate to be unharmed by the Maoists when I remained in Nepal so it can’t be said that I was not of any adverse interest to the the Maoists. I was chaos about my life as I had to face a serious harm by the Maoists any time and on the other hand, I was chased by my boyfriend who had lured me into relationship.

3    I was forced to become a sex slave by [X] who lured me into a relationship and I was not allowed to travel on my own because I was controlled by him. As a woman, I was unable to protect or defend myself in a male-dominated Nepalese society. I had run out of the ideas to seek the assistance from the police to leave the man who had made me a sex slave in his control. I was only able to come out of the room after I pretended that I was pregnant after three months living with his in his control. My situation for my safety in Nepal be viewed like in Australia is an irrelevant consideration, and taking an irrelevant consideration into account to cast a shadow on my credibility is not fair.

4    I do not agree with the purported decision of the Tribunal because I have been given no procedural fairness and natural justice in my case.

36    The primary judge’s findings as to those grounds (primary judgment at [18]-[26]) are summarised below.

37    Regarding Ground 1, a review of the Tribunal’s reasons discloses that the Tribunal was aware of and took into account the applicant’s claims relating to her “political opinion” and the consequences said to flow from it. Similarly, the applicant’s claim to “membership of a particular social group” was not pressed before the Tribunal nor was the particular group identified, by the applicant, before the Federal Circuit Court. Finally, the contention that the Tribunal’s decision involved an error of law was “really an invitation to undertake impermissible merits review”, with no error of law disclosed in relation to the purported issues of a fear of harm stemming from her political opinion or membership of a particular social group.

38    Regarding Ground 2, it amounted to “no more than a further invitation to undertake impermissible merits review”. Further, the contention that the Tribunal’s findings were illogical had no substance since the findings were open on the evidence.

39    Regarding Ground 3, the findings of fact with respect to the applicant’s claims involving X were open to the Tribunal, which had formed its view due to what it considered to be inconsistencies, a lack of detail, and the implausibility of some of the applicant’s claims, as well as concerns the Tribunal had about “recent invention”. Further, those findings “did not reflect irrelevant considerations being taken into account”.

40    Regarding Ground 4 which alleged a denial of procedural fairness, that ground “was not particularised and so lacked meaningful substance”.

The Current Proceeding

41    As already mentioned, the application is made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth), with leave to appeal required pursuant to s 24(1A) of the FCA Act.

42    As to the application for an extension of time and the application for leave to appeal, the applicant relies upon the following four 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 failed or ignored to give me natural justice and fairness.

2.    The Tribunal Member has not made a well-balanced decision by relying on its arbitrary views towards my claims and evidence.

3.    It is contended that the Tribunal Member erred by overlooking my claims as the Tribunal Member did not want to believe me because the Member appeared to establish disbelief of my credibility and ignored my entire evidence in which my case was taken in breach of the rules of natural justice.

4.    I am a victim of the Tribunal Member's purported decision.

43    In her affidavit filed on 15 September 2016 in support of that application, the applicant simply says this:

1.    I am the applicant.

2.    I am seeking justice.

3.    I failed to lodge an appeal within the deadline because I did not know the deadline for the court appeal and I thought the deadline was 28 days from the date of [judgment] of the Federal Circuit Court Judge.

4.    His Honour Judge Cameron failed to find a jurisdictional error committed by the Tribunal Member in my case.

44    The applicant annexes a draft notice of appeal to her affidavit which sets out the following four grounds:

1.    The Federal Circuit Court Judge made a legal mistake by ignoring or failing to find that the Tribunal Member made an error of law in concluding that I am not a refugee.

2.    The Tribunal Member failed to make a well-balanced decision by relying on its arbitrary views towards my claims and not based on facts.

3.    It is contended that the Tribunal Member erred by overlooking my claims in which my case was taken in breach of the rules of natural justice.

4.    I am a real victim of the Tribunal Member's purported decision

45    As to the grounds recited in the application for an extension of time and leave to appeal, Ground 1 simply asserts a denial of natural justice and fairness; Ground 2 simply asserts arbitrary decision-making by the Tribunal Member; and Ground 3 simply asserts that the Tribunal overlooked the applicant’s claims, “ignored [her] entire evidence”, and also asserts a denial of natural justice.

46    As to the draft notice of appeal, Ground 1 asserts an “error of law” on the part of the Tribunal Member and that the Federal Circuit Court Judge “made a legal mistake” by not finding so; Ground 2 is framed similarly to Ground 2 in the application for an extension of time and leave to appeal in that it asserts arbitrary decision-making by the Tribunal Member; and Ground 3 is framed similarly to Ground 3 in the application for an extension of time and leave to appeal in that it asserts a denial of natural justice.

47    No particulars are given of these grounds. Moreover, the applicant’s oral submissions before this Court failed to provide any substance or content to the grounds. In effect, the applicant has merely sought to engage in impermissible merits review. The primary judge recognised as much, with respect to Grounds 1 and 2 (noting also the observations with respect to the submissions at the hearing before that Court; primary judgment at [27]). The current position, albeit with respect to differently framed grounds, remains the same.

48    Nevertheless, this Court has fully considered the material before it in order to form a view for itself as to whether there is any basis for concluding that there is an arguable ground of appeal from the judgment and orders of the Federal Circuit Court due to a failure, on the part of that Court, to identify any arguable ground of jurisdictional error on the part of the Tribunal. This Court has not been able to identify any arguable ground of jurisdictional error on the part of the Tribunal which might support the generality of the claims in the grounds of appeal, or otherwise. The primary judge has not fallen into error.

49    The application must be dismissed with costs.

Associate:

Dated:    19 December 2017