FEDERAL COURT OF AUSTRALIA

BPL17 v Minister for Immigration and Border Protection [2018] FCA 221

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time for leave to appeal be refused.

2.    The applicant to pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J

INTRODUCTION

1    The applicant arrived at Christmas Island as an unauthorised maritime arrival on 17 March 2013. He is a Vietnamese citizen, having been born on 29 May 1985 in Vietnam. The Department of Immigration and Border Protection invited the applicant to apply for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). On 21 August 2016, the applicant lodged an application with the Department for a SHEV. The application was supported by a statutory declaration and various identity documents, submissions by his migration agent, country information and letters of support. He was invited by the Department to participate in an interview on 25 November 2016 to discuss his visa application and claims. The applicant duly attended and his migration agent also provided post-interview submissions.

BEFORE THE DELEGATE

2    On 30 December 2016, the Minister’s delegate decided not to grant the applicant a SHEV and the applicant was duly notified. That decision was a fast-track reviewable decision, as defined by s 473BB of the Migration Act 1958 (Cth). On 10 January 2017, the decision was referred to the Immigration Assessment Authority (IAA) for review. The IAA wrote to the applicant informing him of this and providing him with an information sheet and the Practice Direction for Applicants, Representatives and Authorised Recipients, given under s 473FB of the Migration Act. He was invited to comment on new information relevant to his case. On 8 March 2017, his representative, Dr McIntyre, provided a response to the IAA’s letter and the new information.

THE IAA

3    On 10 March 2017, the IAA affirmed the decision not to grant the applicant a SHEV and he was advised of that decision by letter also dated 10 March 2017. The letter was forwarded to his representative on 13 March 2017.

4    On 12 April 2017, the applicant applied to the Federal Circuit Court of Australia for judicial review of the IAA’s decision.

BEFORE THE FEDERAL CIRCUIT COURT

5    There were four grounds of review before the Federal Circuit Court. They were:

1.    I think the Decision maker did not consider all the evidence or did not take into account relevant considerations.

2.    I was not afforded procedural fairness.

3.    I think the Decision was affected by bias.

4.    I think the Decision maker misinterpreted the law.

6    Programming orders were made by the Federal Circuit Court to file and serve any amended application, affidavits and submissions. The applicant did not do so. The hearing before the Federal Circuit Court proceeded on 24 July 2017. The applicant made brief oral submissions. On the same day, the Federal Circuit Court ordered that the application be dismissed and that the applicant pay the Minister’s costs: BPL17 v Minister for Immigration and Anor [2017] FCCA 1712. The Federal Circuit Court held that the applicant’s oral submissions invited the Federal Circuit Court to engage in impermissible merits review and that nothing said identified any jurisdictional error (at [37]). In relation to the written grounds, the primary judge concluded that ground 1 (at [38]), ground 2 (at [41]), ground 3 (at [43]) and ground 4 (at [45]) failed to make out any jurisdictional error.

NOTICE OF APPEAL

7    On 17 August 2017, the applicant lodged a notice of appeal in this Court, appealing the whole of the judgment of the Federal Circuit Court.

8    The notice of appeal contains six, essentially new, grounds of appeal, which are as follows:

1.    His Honour erred when he did not find that the IAA officer based on no evidence when he did not accept the explanation of the applicant for providing the bogus documents and the IAA officer failed to acknowledge the pressure and fears the applicant have has [sic] when he first came to Australia.

2.    His Honour erred when he did not find that the IAA officer failed to acknowledge a real chance or real risk of harm the applicant would faced [sic] on his return to Vietnam for the reasons of his religion or his actual political opinion or his imputed political opinion as a failed asylum seeker.

3.    His Honour erred when he did not find that the IAA officer was rush [sic] to delivering the decision and didn't take into account while he was receiving the new submission on 03 February 2017 and the comments on 08 March 2017 by the applicant's representative about the country information in Vietnam what could probably putted [sic] the applicant in risk of harm on his return.

4.    His Honour erred when he did not find that the IAA officer denied the risk of harm the applicant will suffer on return to Vietnam as a result of release of his personal details on Departments website in February 2014.

5.    His Honour erred when he did not find that the IAA officer ignored the real chance of harm the applicant will face as a Catholic and a failed asylum seeker on his return.

6.    His Honour erred when he did not find that the officer conducting the IAA did not make a finding with no evidence[.]

IN THIS COURT

9    The Minister filed a notice of objection to competency on 13 October 2017, objecting to the competency of the appeal, first, on the basis that it was not filed within 21 days from the date on which the judgment was pronounced as required by r 36.03 of the Federal Court Rules 2011 (Cth) (FCR) and secondly, on the basis the applicant had not filed any application for any extension of time within which to file a notice of appeal pursuant to r 36.05 FCR.

10    The Minister observes that the Federal Circuit Court judgment was delivered on 24 July 2017, therefore, the last day for appealing was 14 August 2017. There is no application for an extension of time, but I will treat the notice of appeal as being an application for an extension of time, accompanied by a draft notice of appeal, which is said to be the notice of appeal.

11    Clearly the delay was minimal, particularly for the applicant’s circumstances. It was only three days and the Minister freely concedes this point, however, in granting an extension of time, it is necessary to have regard to other considerations: see ALU15 v Minister for Immigration and Border Protection [2016] FCA 204 (at [17]) where Collier J said:

It is well established that factors for the Court to take into account in considering an application for extension of time include:

·    the extent of the delay;

·    the explanation for the delay;

·    any prejudice a respondent might suffer because of the delay; and

·    the merits of the proposed appeal.

(Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.)

12    No explanation for the applicant’s delay was provided, however, given the extent of the delay, I will put that to one side. No submissions were made regarding any prejudice the Minister would suffer were the extension to be granted, therefore, the application really turns on the merits of the appeal.

13    In this instance, none of the six articulated grounds of appeal has any or sufficient merit to warrant the Court granting an extension of time within which to appeal. Grounds 1, 2, 4 and 5 attempt to impermissibly challenge the merits of the IAA’s decision by asserting a failure on the part of the primary judge to correct factual errors.

14    In relation to the other grounds before the Court, the primary judge noted (at [42]-[43]) that no jurisdictional error had been made out in the IAA. His Honour noted the following matters (at [39]-[43]):

Ground 2

39.    In relation to Ground 2, on the face of the material before the [Federal Circuit Court], the [IAA] complied with its statutory obligations in the conduct of the review.

40.    On the face of the material before the [Federal Circuit Court], the [IAA] complied with its obligations of procedural fairness by giving the applicant an opportunity to put on submissions and new information and by the steps taken in compliance with the statutory regime in taking into account the applicant’s submissions and in respect of the new information upon which the applicant was invited to comment. On the face of the material before the [Federal Circuit Court], there was no denial of procedural fairness by the applicant.

41.    No jurisdictional error is made out by Ground 2.

Ground 3

42.    In relation to Ground 3, no conduct was identified to support an allegation of bias. The adverse decision by the [IAA] is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the [IAA] might not bring an independent and impartial mind to the determination of the matter on its matters.

43.    On the face of the material before the [Federal Circuit Court] the [IAA] approached the review with an open mind reasonably capable of persuasion. Nothing on the face of the material supports the allegation of bias. No jurisdictional error, as mentioned in Ground 3, is made out.

15    The applicant did not, at that time, make any submissions to the primary judge asserting any breach of procedural fairness or bias by reason of the IAA making its decision on 10 March 2017. There are no particulars of any of those matters in the grounds of appeal before this Court and there was no relevant oral articulation or development of the grounds. In this instance, the IAA made its decision two days after the applicant’s representative had provided comments and referred to further country information in relation to an issue raised by the IAA. This cannot give rise to a breach of procedural fairness or support any claim of bias, either actual or apprehended, nor can it support a claim of no realistic consideration (ground 3), or irrationality on the basis of no evidence (ground 6). In the IAA’s reasons (at [11]), the following was said:

On 6 March 2017, the IAA invited the applicant to comment on the new information obtained by the IAA. On 8 March 2017, the representative on behalf of the applicant provided comments in response to the new information obtained by the IAA. In support of the comments in response to the new information, the representative also provided country information. The information is dated 23 February 2017 and was published after the delegate's decision. The information is said to demonstrate recent harm to asylum seekers returned by Australia to Vietnam. Both the response and the country information is new information. I am satisfied neither this information, nor the comments (which were provided in response to an issue only raised by the IAA) could not have been provided to the delegate before the decision was made. Having regard to all the circumstances, I am also satisfied under s.473DD(a) of the Act that there are exceptional circumstances to justify the consideration of this new information.

It is clear the IAA did consider the comments by the applicant’s representative and additional country information to which the representative referred.

16    In oral argument before me, the applicant raised the inconsistency noted by the IAA regarding differences in the applicant’s story between what he stated at his entry interview and then what he subsequently stated at his protection visa interview. He submitted that he did not tell the truth because he was under pressure and afraid of being returned to Vietnam.

17    This was not a submission raised before the Federal Circuit Court. The IAA considered this inconsistency, the applicant’s provided reasons and his representative’s submissions (at [34]-[49]) and made a finding which was open on the facts. The applicant’s oral submission in this regard invites the Court to engage in impermissible merits review and reveals no jurisdictional error.

CONCLUSION

18    None of the six proposed grounds of appeal has merit. In those circumstances, an extension of time will not be granted. The application will be refused with costs.

Associate:

Dated:    6 March 2018