FEDERAL COURT OF AUSTRALIA

BUH16 v Minister for Immigration and Border Protection [2018] FCA 638

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 13 December 2017, the applicant filed an application under rule 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to file a notice of appeal from orders of the Federal Circuit Court made on 20 July 2017 dismissing with costs an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 June 2016.

background

2    The applicant is a male citizen of Bangladesh. He arrived in Australia on 26 April 2013 as an unauthorised maritime arrival. He applied for a protection visa on 24 July 2013.

3    The applicant claimed to fear harm on the basis of an actual or imputed political opinion. He claimed to be at risk of harm as a supporter of the Jamath-e-Islam political party (JI) and due to his father being a well-known JI supporter. He also claimed to be at risk of harm from members of the Awami League (AL) because neither he nor his father had agreed to join the AL.

4    The applicant also claimed to fear being seriously harmed by outlaws due to his membership of a particular social group comprised of members of relatively wealthy families in Bangladesh. He claimed that his father had been forced to pay money to outlaws in a neighbouring village due to his family’s relative wealth. He also claimed that he was attacked and beaten by armed outlaws in 2012 and subsequently lived in hiding at his sister’s residence in a nearby village.

5    On 28 January 2015, a delegate of the First Respondent (Minister) refused the visa application, treating it as an application for a Protection (Class XA) visa. As the Tribunal noted at [2] of its decision, amendments to the statutory scheme introduced on 16 December 2014 had the effect that the applicant’s visa application was taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa. As such, the Tribunal was required to consider the applicant’s visa application as an application for a Temporary Protection (Class XD) visa.

6    On 20 June 2016, the Tribunal made orders setting aside the Minister’s decision to refuse the Protection (Class XA) visa and substituting a decision under s 415(2)(d) of the Migration Act 1958 (Cth) (Act) to refuse to grant the applicant a Temporary Protection (Class XD) visa.

Federal Circuit Court Decision

7    On 15 July 2016, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. He advanced the following grounds of review:

1.     The decision of the Tribunal

(a)     is affected by an error of law; and

(b)     denied the applicant procedural fairness.

2.     I have made an application for assistance through Victorian Legal Aid and am awaiting for a decision.

8    The applicant did not provide written submissions to the Federal Circuit Court, nor did he particularise the grounds of review upon which he relied. He was given an opportunity to present oral argument at a hearing on 20 July 2017.

9    The court dismissed the application with costs, essentially on the basis that the applicant’s arguments went only to the factual merit of his claims, rather than identifying error of a jurisdictional kind, and that the court was not able to discern any jurisdictional error in the decision or reasoning of the Tribunal.

The Present Application

10    The applicant filed the application for an extension of time 125 days outside of the 21 day appeal period provided by r 36.03(a) of the Federal Court Rules 2011 (Cth). The application was supported by an affidavit sworn by the applicant on 13 December 2017 and an accompanying letter signed by the applicant and dated 11 December 2017. The letter provided the following explanation for the applicant’s failure to file a notice of appeal within the prescribed period (errors in original):

I am writing this letter to request the Federal Court of Australia to grant me permission to lodge Notice of appeal from the Federal Circuit of Australia due to my medical condition I was unable to lodge the application with the require time period. I could not lodge the application on time because of knew [knee] injury and surgery on 14 September 2017 in Geelong Hospital. I was unable to walk for due to serious pain for months.

I am very sorry due my health and kindly request the Federal Court of Australia to grant me permission to lodge the application due to compelling reasons.

11    The applicant also filed a document titled “Draft Notice of appeal from the Federal Circuit Court of Australia”, identifying the proposed grounds of appeal on which he would rely, should an extension be granted. Additionally, the applicant’s affidavit sworn 13 December 2017 and outline of submissions filed 19 January 2018 appear to contain what I have treated as further grounds in support of an appeal should an extension of time be granted.

12    While the Minister conceded in written submissions that no prejudice would arise if the applicant were granted an extension of time in which to file an appeal, he submitted that the application should be dismissed due to the unsatisfactory nature of the applicant’s explanation for the delay, and the fact that the proposed appeal lacked merit and enjoyed no prospects of success.

13    In determining whether to grant an extension of time, consideration is often given to the following factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [18]-[23]:

(1)    the extent of the delay;

(2)    the applicant’s explanation for the delay;

(3)    any prejudice the respondent might suffer because of the delay; and

(4)    the merits of the applicant’s proposed appeal.

14    These factors are not exhaustive and each case turns on its own facts: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38]. However, these factors are sufficient for present purposes. The respondent concedes there is no real prejudice. The other three factors are considered below.

Extent of the delay

15    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicant was required to file a notice of appeal on or before 10 August 2017, being 21 days after 20 July 2017, being the date the orders of the Federal Circuit Court were made. Accordingly, the applicant requires (under r 1.39) an extension of 125 days in which to appeal. This is a substantial delay, which weighs against granting the extension.

Explanation for the delay

16    The applicant claimed he was unable to lodge the appeal within the prescribed period due to a knee injury. He claimed that he underwent surgery on 14 September 2017 and was unable to walk for months due to serious pain. He provided a medical certificate and a series of letters from the Asylum Seeker Resource Centre evidencing his injury, surgery and rehabilitation.

17    One difficulty for the applicant is the lack of explanation for his delay in filing between 10 August 2017 and 14 September 2017. As mentioned, the applicant was required to file a notice of appeal on or before 10 August 2017. The medical certificate confirms that he underwent knee surgery on 14 September 2017. Even if I were to accept that the applicant’s mobility was in some relevant way restricted for a period of six months after surgery, such that he was unable to file the notice during that period, there remains a delay of approximately one month for which the surgery and subsequent rehabilitation does not provide an explanation.

18    Further, although the evidence is to the effect that the applicant required physiotherapy for a period of six months following the knee surgery in order to mobilise normally, it does not follow that this relevantly restricted his ability to file a notice of appeal. He filed the notice of appeal electronically on 13 December 2017, approximately three months into the six months rehabilitation period.

19    The foregoing evidence does not provide a satisfactory explanation for the delay. The evidence does not establish that the injury, surgery or post-operative rehabilitation prevented the applicant from filing the notice of appeal in time or why it took so long.

20    During oral submissions, the applicant stated that his father had died and that this had caused him “mental disturbance”. He stated that his father had died after the Tribunal decision but could not say when. He stated it was on a Friday and that he had a photo which proved it. I am prepared to accept that the applicant’s father has died and that this caused him great anguish or “mental disturbance”. The difficulty is that there is nothing before the Court which establishes that the death or the consequent “mental disturbance” occurred at a relevant time, namely from immediately after the Federal Circuit Court made its orders and for the ensuing days until the application for extension of time was filed. This was not mentioned in the applicant’s affidavit as a reason for the delay.

21    The lack of a satisfactory explanation weighs against the grant of an extension of time.

Proposed appeal grounds

22    As mentioned, the applicant filed a “Draft Notice of appeal from the Federal Circuit Court”, which contained four grounds of appeal. I refer to these grounds as the draft appeal grounds.

23    Further grounds which might be taken to be proposed grounds of appeal are found in the applicant’s written submissions and affidavit sworn 13 December 2017. I deal with each of these separate grounds below.

Draft appeal grounds

24    The applicant’s draft notice of appeal contained the following appeal grounds (errors in original):

1.    The Court to review the matter dismissed by the Federal Circuit Court of Australia with file number MLG1502/2016, which the appellant seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (AAT) dated 20 June 2016. The AAT set aside a decision by the delegate if the first respondent not grant the appellant a protection (Class XA) visa and substituted a decision to refuse grant the appellant a Protection (Class XD) visa under section 415(2)(d) of the Act.

2.    The court should review all materials provided to the First and Second respondents and consider the appellant presented to the Federal Circuit Court Australia before the matter was dismissed. Accordingly, the appellant face serious risk of harm due to the appellant being a Jamath-e-Islam (JI) supported, his father’s being a well-known JI supporter, the appellant also face further harm from the members of Awami League (AL). The appellant subject to serious mistreatment and harm if force from Australia to Bangladesh.

3.    The decision of the Tribunal that was affected by an error of law and denied the appellant fairness, should be reconsidered by the Federal Court of Australia.

4.    The matter dismissed by Judge Riley on 20 July 2017 from Federal Circuit Court of Australia Melbourne should be reconsider by the Federal Court as the matter was not fully examined by the Court what the appellant serious harm threat if the appellant return to Bangladesh.

25    The first draft appeal ground sets out certain background information and asserts no error on the part of the Federal Circuit Court or the Tribunal. It could not result in an appeal to this Court being allowed.

26    Ground two restates the claims advanced by the applicant before the Tribunal in support of his application for a protection visa. Again, it does not assert any error in the decision or reasoning of the Federal Circuit Court. It could not result in an appeal to this Court being allowed.

27    Ground three is to the effect that the Tribunal fell into jurisdictional error, including by denying the applicant procedural fairness. I read this ground to assert that the Federal Circuit Court erred in failing to find that the Tribunal so erred. This ground is not further particularised in the draft notice of appeal but appears substantially to reflect the case put to the Federal Circuit Court. It has insufficient prospects of success to warrant an extension of time, in essence for the reasons identified by the Federal Circuit Court which were not shown to contain relevant error. That court stated:

5.    The applicant attended a hearing before the Tribunal, with the assistance of a migration agent. The Tribunal discussed the applicant’s case with him in considerable detail. In particular, it appears from paragraph 65 of the Tribunal’s reasons that the Tribunal put to the applicant whether he could relocate within Bangladesh. The applicant’s response to that was that there were members of the Awami League all over the country. He also told the Tribunal that people were looking for him and they would be able to find him wherever he lived within Bangladesh.

6.    The Tribunal accepted that the applicant had been assaulted in 2012. The Tribunal also accepted that the applicant’s father was known as a supporter of Jamaat-e-Islami. The Tribunal accepted that the applicant and his father had both been pressured to join the Awami League. The Tribunal accepted that the applicant and his father had received demands for money.

7.    However, the Tribunal considered that the applicant had exaggerated his claims. The Tribunal accepted that the applicant had had an involvement with Jamaat-e-Islami at a very low level. The Tribunal did not accept that the applicant had a continuing commitment to or interest in Jamaat-e-Islami. The Tribunal did not accept that the applicant would have an active involvement with Jamaat-e-Islami if he returned to Bangladesh.

8.    The Tribunal noted that the applicant’s father still lived in his home village. Based on this circumstance, the Tribunal considered that the applicant had exaggerated his claims of the difficulties he would face.

9.    The Tribunal considered that the attack on the applicant in 2012 was perpetrated by criminals and was opportunistic. The Tribunal did not accept that the applicant had been targeted in that attack.

10.    The Tribunal did not accept that the applicant’s photograph had been circulated amongst Awami League supporters or that members of the Awami League or any criminals were looking for him.

11.    The Tribunal had considerable doubt about the applicant’s claims. However, the Tribunal did not find that the applicant would not face a real risk of serious or significant harm in his home village. The Tribunal noted that, even if it did accept that the applicant faced a risk of serious or significant harm in his home village, he could relocate elsewhere within Bangladesh.

12.    The Tribunal considered the issue of relocation at some length. The Tribunal did not accept that the alleged opponents of the applicant would find him in other parts of Bangladesh, such as Dhaka. The Tribunal did not accept that the applicant was known to, or of any interest to, Awami League supporters outside his local area. The Tribunal did not accept that the applicant would need to live discreetly in Dhaka because the Tribunal did not accept that the applicant had any genuine desire or commitment to support Jamaat-e-Islami. The Tribunal did not accept that the applicant would face serious harm at the hands of extortionists. The Tribunal considered that the applicant could safely relocate to another part of Bangladesh.

13.    The Tribunal went on to consider whether it would be reasonable, in the sense of practicable, for the applicant to relocate. The Tribunal accepted that he may not have familial support if he were to relocate. However, in view of the applicant being a young man who has worked in a variety of capacities in Bangladesh and, despite having a leg injury, has travelled to Australia and found work here as a cleaner, the Tribunal considered that it would be reasonable and safe for the applicant to relocate within Bangladesh.

14.    The Tribunal accepted that there is political and criminal violence in Bangladesh. However, on the basis of country information, the Tribunal considered that the risk that the applicant would be harmed in such violence was very slight.

15.    The Tribunal also considered the complementary protection provisions. The Tribunal considered that the applicant’s fear of harm was localised and that if he were to relocate, he would not face significant harm, largely for the same reasons that the Tribunal had found that he would not face serious harm.

…

20.    The applicant’s submissions to the court consisted of, firstly, a request for a visa to be permitted to stay in Australia, and, secondly, a statement that, six months ago in Bangladesh, someone was looking for him. These are matters that go to the merits of the case, which this court is not permitted to consider. When asked what he wished to say about what the Tribunal had done that was wrong in some way, the applicant said he had nothing to say.

21.    I have been unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process. The Tribunal appears to me to have correctly applied the law and to have afforded the applicant procedural fairness. The Tribunal invited the applicant to a hearing which he attended with the assistance of a migration agent. The Tribunal discussed relevant issues with the applicant during the course of the hearing. In particular, the Tribunal raised with the applicant the question of relocation and noted the applicant’s response. It seems to me that the Tribunal considered all of the relevant considerations and did not take into account any irrelevant considerations. It seems to me that the Tribunal’s decision was reasonably open to it. For these reasons, the application must be dismissed.

28    Ground four asserts that the Federal Circuit Court failed fully to examine the applicant’s claims that he would suffer serious harm and threats if he were returned to Bangladesh. It was not the role of the Federal Circuit Court on an application for judicial review to perform a complete review of the claims advanced by the applicant in support of his protection visa application. Its role was strictly one of judicial review: ss 474, 476 of the Act. Likewise, it is not for this Court to reconsider the merits of the protection visa application or the applicant’s claims. This Court’s role is the identification and, if applicable, correction, of appealable error on the part of the Federal Circuit Court: SLMB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 129 at [11]; s 24(1)(d) of the Federal Court Act 1976 (Cth). This ground does not have significant merit.

Additional grounds in affidavit

29    The applicant’s affidavit sworn 13 December 2017 contained the following statements which might be understood as proposed grounds of appeal:

3.    The Court should reconsider the matter and request the first and second respondents to provide evidence before the Court of my safety upon the appellant force from Australia to Bangladesh.

(a)    The Court should consider the appellant protection claimed first and second respondents failed to consider for mistreatment and harm appellant fear to return to Bangladesh.

30    I refer to paragraph [3] as the first ground, and paragraph [3(a)] as the second ground.

31    The first ground calls on this Court to reconsider the merits of the applicant’s visa application, and to require the Minister and the Tribunal to provide evidence that the applicant would be safe on his return to Bangladesh. This ground invites the Court to engage in an impermissible merits review. To the extent the applicant seeks orders directing the Minister and the Tribunal to provide evidence that the applicant will not suffer harm on his return to Bangladesh, the statutory scheme does not require the Minister or the Tribunal to provide such evidence and nor does it contemplate this Court making such a request of the Minister or the Tribunal. The first ground does not suggest any error of law in the reasoning or decision of the Federal Circuit Court.

32    I understand the second ground to be a claim that the Minister and the Tribunal failed to consider the applicant’s claims that he will be mistreated and harmed on his return to Bangladesh. This ground cannot succeed in light of the Tribunal’s detailed consideration of the risk of harm to the applicant on his return to Bangladesh. It adds nothing to the substance of the grounds in the draft notice of appeal and is merely a further invitation for merits review.

Additional grounds in written submissions

33    The applicant made the following statements in his written submissions at [23]-[24]:

23.    In my matter, procedural fairness was denied. The respondents failed to consider the case beyond their pre judged assumptions. The Tribunal failed to consider the merit of my case and wholly dependent on the decision of the delegate. Thereby the respondents did not act with the established principle of procedural fairness.

24.     The rule against bias guarantees that the decision maker should act on impartial mind and not to have pre-judged a decision. Accordingly, in order to respect with the central requirement of procedural fairness, the Tribunal should be open to persuasion and decide the cases on their merits. However, in my matter, the Tribunal had a predetermined view of the outcome of the review prior to its completion and took irrelevant matters into consideration in making its decision.

34    I understand the applicant to contend that the decision of the Tribunal was affected by bias. The applicant did not point to any material capable of supporting an inference of actual bias on the part of the Tribunal, nor did he provide any examples of conduct which could be said to give rise to a reasonable apprehension that the Tribunal did not bring an impartial mind to the case before it. This ground does not have merit.

35    To the extent that the final sentence of paragraph [24] constitutes a claim, intended to be different from the claim of pre-judgment, that the Tribunal took into account an irrelevant consideration in reaching its decision, the particular irrelevant consideration was not identified.

36    The applicant also referred to the decision in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 in paragraph [21] of his submissions. The Tribunal dealt with the claim that the applicant was, or would be on return, targeted by “outlaws” not linked to a particular political party. For example, it accepted that the applicant was attacked by a group of men who demanded money from him in May 2012. The Tribunal considered that to be an opportunistic attack by individual criminals. By way of further example, the Tribunal accepted that the applicant and his father had both been pressured to join the Awami League and that money had been demanded. The Tribunal did not accept that any members of the Awami League or any criminals were looking for the applicant.  It did not find that the applicant would face any real risk of serious or significant harm in his home village; it had “considerable doubts” about that. However, the Tribunal found that, even if it accepted a real chance of harm from the Awami League or criminals in his local area, it did not consider that the applicant faced any real chance of serious harm from criminals, outlaws or extortionists (whether or not such harm was motivated for a Convention purpose) or the Awami League if he relocated away from his home area to another part of Bangladesh. The factual findings did not give rise to a need to consider the adequacy of state protection from the actions of either the outlaws or the Awami League.  The applicant’s case failed at a factual level and, in relation to the fact finding process, there is nothing which indicates jurisdictional error on the part of the Tribunal or an appealable failure on the part of the Federal Circuit Court to recognise any such jurisdictional error.

37    During oral submissions, the applicant asked that this Court grant him a visa. He also stated that his father has died and his mother was in hospital. This Court does not have jurisdiction to grant the applicant a visa or to correct mistaken findings of fact by the Tribunal or to conduct a general review of the merits of the applicant’s claims with a view to substituting the decision in fact made with one it thinks should have been made: Craig v South Australia (1995) 184 CLR 163 at 175; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]. This Court has the role of deciding whether the Federal Circuit Court wrongly decided that there was no jurisdictional error on the part of the Tribunal. As Perry J recently observed in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [13]:

… The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s visa application must be assessed under the Act, the Tribunal’s decision was illogical or irrational, or if the Tribunal failed to hear and determine the appellant’s application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

38    The applicant has not pointed to any jurisdictional error by the Tribunal or any appealable error on the part of the Federal Circuit Court.

Conclusion

39    Taking into account the lack of prospects of success of any of the proposed grounds of appeal, the extent of the delay and the lack of adequate explanation for the delay in filing an appeal, I do not regard this as an appropriate case in which to exercise the discretion to extend time under r 1.39 pursuant to the application made under r 36.05.

40    The application for an extension of time is dismissed with costs.

Associate:

Dated:    9 May 2018