FEDERAL COURT OF AUSTRALIA

CKA15 v Minister for Immigration and Border Protection [2018] FCA 839

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal from the decision of Flick J be dismissed.

2.    The Applicants pay the Respondents’ costs of the appeal to be taxed or agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1    The applicants seeks an extension of time in which to appeal a decision of this Court dated 15 November 2017. In that decision, Flick J dismissed an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Federal Circuit Court of Australia (the FCC). The FCC had been required to consider an application to extend the time within which the applicants might seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal had, on 25 November 2014 affirmed a decision of the Minister’s delegate to refuse the applicants Protection (Class XA) Visas.

2    For the purposes of this matter r 36.03 of the Federal Court Rules 2011 (Cth) provides that any notice of appeal must be filed within 21 days of the day on which the judgment appealed from was pronounced. Here, the last day on which the applicants were entitled to file a notice appeal was 6 December 2017. The applicants filed the present application on 5 January 2018 which was 30 days later.

Background

3    The four applicants are a husband and wife and two of their children, two sons. I adopt Flick J’s summary of the factual background of this case:

2    Each of the Applicants is a citizen of Lebanon. The father claims to fear persecution by reason of his being a Maronite Christian. One of the daughters … is said to have been kidnapped by members of an Islamic group called Fateh Al Islam and forced to marry and convert to Islam. She was, however, rescued. She later remarried and moved to Canada. The other daughter … is married, has a child of the marriage and resides in Australia. The other family members fled to a different area and only returned to their home village after those involved in the kidnapping had been arrested.

3    The father and mother and one of the two sons entered Australia in 2013. The other son arrived in 2010.

4    The father claims to fear retribution if he returns to Lebanon, particularly as the terms of imprisonment imposed upon those who kidnapped his daughter have or are about to come to an end. He separately claims that his sons will be given weapons and forced to fight in sectarian wars and that the family will be subject to extortion.

4    On 6 March 2014, a delegate of the Minister refused to grant the protection visas sought by the applicants.

5    The applicants applied to the Tribunal for review of the delegate’s decision. They were invited to appear before it on 28 October 2014 to give evidence and present their arguments. The father and mother attended the hearing, but the sons did not. One of the couple’s daughters, an Australian-resident who was not an applicant, also attended as did a registered migration agent, who represented the applicants. At the hearing the father gave evidence as did his wife and their Australian-resident daughter. There was no objection to this course – that is the wife and daughter giving evidence to the Tribunal – by either the applicants, the daughter or the Migration Agent who represented them.

6    Subsequently, pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), by letter dated 3 November 2014 the Tribunal invited the applicants to comment on certain issues which had arisen as a result of the hearing. That letter invited the applicants to comment upon certain inconsistencies in the applicants’ claim which became obvious, or more obvious, as a result of the oral evidence which had been received in the course of the Tribunal hearing and, in particular, from the mother and daughter. The applicants’ representative responded via email dated 17 November 2014. The thrust of that response was that the applicants objected to the Tribunal having regard to the oral evidence which had been given by the mother and daughter. The basis of that objection appears to be that when they attended at the hearing they did not do so intending to give evidence. It was initially asserted that the request by the Tribunal that the mother and daughter give evidence and their acceding to that request amounted to a breach of the rules of natural justice and, in particular, that it was procedurally unfair.

7    The arguments advanced by the applicants were rejected and, on 25 November 2014, the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

8    One of the applicants’ main arguments advanced to the Tribunal concerned the conduct of the review in the manner identified above. Specifically, they asserted that in response to the hearing invitation they had indicated that only the father would give evidence. They complained that, notwithstanding that indication, the Tribunal asked the mother and daughter to give evidence which they did. In the letter which was sent after the hearing in response to the Tribunal’s 424A letter, the applicants alleged that the mother and daughter had been ‘entrapped’ into giving evidence and that they were not provided with reasonable notice to prepare for examination. In respect of that objections the Tribunal decided at [11] of its reasons:

The Tribunal has carefully considered the father applicant’s objection. However, the Tribunal notes that it is well established that the Tribunal follow an inquisitorial process of review, which enables it to actively investigate and obtain relevant information. In this context, the Tribunal has been found to have an implied general power to get or invite someone to produce a document or non-documentary information subject to any constraints found in the Act. … The Tribunal accepts that the mother applicant stated in the response to hearing invitation that she would not take part in the Tribunal hearing. However, she nevertheless attended …. The Tribunal explained at the start of hearing why it wished to take evidence from the mother applicant and daughter which was because credibility issues had been raised by the delegate and because of the late provision on the day of the hearing of a submission by the daughter.

9    In support of the general proposition that the Tribunal had a general implied power to invite someone to produce information to it, the Tribunal referred to the decision of this Court in SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1. It also considered that it was not bound by the Evidence Act 1995 (Cth) in the manner in which it obtains information. As appears in the above cited paragraph from the Tribunal’s reasons, it observed that at the commencement of the hearing it had explained why it wished to take evidence from the mother and daughter. It subsequently noted that no objection was raised at the start of the hearing or later that day by any person present including the Migration Agent representing the parties. The mother and daughter were asked factual questions about which the Tribunal would have expected them to have knowledge if the evidence of the father was truthful. The Tribunal was satisfied that it was reasonable to take oral evidence from the mother and daughter.

10    In relation to the substance of the applicants’ claim for protection visas, the Tribunal found that there were ‘such significant inconsistencies’ in the applicants’ evidence that it could not be satisfied they were being truthful. It had serious concerns in relation to the credibility of the father and mother applicants as well as that of their daughter. It did not accept any of the applicants’ claims in relation to an allegation that another daughter had been abducted. Further, it did not accept that the applicants were of adverse interest to Fateh Al Islam. There was no credible evidence to suggest that the applicants would be extorted upon their return to Lebanon. Additionally, on the basis of country information, the Tribunal rejected the claim that the applicants would face harm because of their religion or from generalised violence. The Tribunal also rejected the claim that the applicant sons would be forcibly recruited to fight in any armed conflict in Lebanon.

11    The Tribunal concluded that the applicants did not face a real chance of persecution or significant harm if they returned to Lebanon and so they did not satisfy the criteria set out in s 36(2) of the Act.

Proceedings in the Federal Circuit Court

12    On 13 November 2015, the applicants sought judicial review of the Tribunal’s decision in the FCC, however that application was out of time as it was filed over 10 months in excess of the 35 day time limit prescribed by s 477(1) of the Act. The applicants filed an application for an extension of time. Section 477(2) of the Act confers a discretionary power on the FCC to extend time and provides:

The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

13    The FCC considered the reasons advanced for not bringing the application for judicial review within time as well as the merits of the proposed grounds of review in the event that time was extended. The learned judge correctly identified that the ‘issue for the Court … is whether it is in the interests of the administration of justice to extend time’: CKA15 v Minister for Immigration & Border Protection [2017] FCCA 1089 [17].

14    The Judge rejected the applicants’ submission that the delay (of over 10 months) was ‘relatively minimal’ or ‘relatively short’, indeed the delay was characterised as ‘significant’: [2017] FCCA 1089 [5]-[13]. Nevertheless, his Honour held that the applicants had provided a satisfactory explanation for the lengthy delay in commencing the application judicial review.

15    Ultimately, however, the learned judge determined that the proposed grounds of review lacked sufficient merit and, for that reason, the application to extend time was rejected.

16    In support of their application to extend time the applicants had advanced two grounds which were (without including Particulars) as follows:

(a)    The Tribunal denied the Applicants procedural fairness and a fair hearing in the circumstances where it was clearly indicated that certain persons would not be witnesses.

(b)    The Tribunal’s findings on key claims as fear from the daughter’s husband and his supporters (and kidnapping and marriage) … was irrational and/or illogical and failed to as the correct questions.

17    The first ground was held to be unmeritorious. The learned Judge said:

the applicants were put squarely on notice both at the hearing, and then by the Tribunal’s letter sent pursuant to s 424A of the Act, of the Tribunal’s concerns arising from her written statement which the applicants and [the daughter] had given to the tribunal, and her evidence. They were given the opportunity to respond to it. I cannot see that there was any obligation on the Tribunal to further pursue its concerns with [the daughter] herself, given that she was not an applicant before the tribunal, and had had a fair and meaningful opportunity to explain her written statement to the Tribunal.

18    The second ground was also found to be unmeritorious. In that respect the learned Judge said:

I can only agree with the minister that to describe the Tribunal’s reasoning as being irrational, illogical or unreasonable, is simply another way of the applicants expressing their dissatisfaction or disagreement with the Tribunal’s decision.

19    In circumstances where the proposed arguments lacked merit it was open to the learned Judge to refuse to extend time in which to bring the application for judicial review.

The decision of Flick J in the Federal Court of Australia

20    The first proceeding in this Court was not an appeal but an application for writs of certiorari and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth). The Amended Originating Application contained two grounds. The first was that the FCC had misconstrued ss 424 and 427 in determining whether to extend time. The second was that the learned judge erred in failing to “take into account all the considerations and [in limiting] itself to the statutory grant of power”. The second ground was abandoned before Flick J and reliance was placed only on the first. In relation to that ground his Honour took it as being that the FCC had erred in the exercise of discretion because it had failed to correctly assess the merits of the argument advanced by the applicant.

21    However, his Honour held (at [29]) that the proceedings before him ought to be dismissed because, regardless of how the ground was construed, any error committed by the FCC was within jurisdiction and not susceptible of review and, moreover, because the FCC committed no error going to jurisdiction or error within jurisdiction.

22    In relation to whether there was an error within jurisdiction, Flick J found that, whichever way the applicants’ grounds were considered, it was a challenge to the conclusion reached by the primary Judge, which was within the jurisdiction entrusted to him. The arguments advanced did not identify an error by the learned FCC judge in the identification of the principles to be applied in the exercise of the discretion. That being so, the ground advanced did not go to jurisdiction.

23    The second point which Flick J (at [35]) considered was whether there was any error in the way the FCC Judge had approached the application of ss 424 or 427 to the decision of the Tribunal. The context of that issue was the fact that the Tribunal received evidence from the “wife-applicant” and the Australian resident daughter although neither of these persons were identified in the response to the Hearing Invitation. It was suggested that the Tribunal erred in utilising its powers under those identified sections to obtain or “get” the evidence of those two persons.

24    Sections 424 or 427 concern how the Tribunal conducts a review and, specifically, how it gets information. Section 424, it was noted, is consistent with the fact that the Tribunal processes were not adversarial in nature but more akin to inquisitorial (at [40]) or, at least, administrative decision making processes. His Honour then identified some relevant constraints on the exercise of the Tribunal’s powers under ss 424 or 427, although none were relevant for present purposes.

25    Flick J dismissed any suggestion that the exercise of the powers by the Tribunal to obtain the information in question and to use it was irrational or unreasonable. Indeed, the information obtained during the course of the Tribunal hearing was directly relevant to the very issue advanced by the applicant as to why it was that he feared harm were he to return to Lebanon, being the alleged kidnapping of the youngest daughter of the family. In this respect, the Australian sister had given a statement about that matter and the Tribunal was entitled to obtain that evidence and to act on it (at [47]).

26     His Honour later observed that the Tribunal’s power to seek and obtain information was an unexceptional part of its function. At [49] his Honour said:

To deny the Tribunal the opportunity to “get” such information as it considered relevant, moreover, would be to deny the Tribunal its inquisitorial function and manacle it to being the mere arbiter of such information as was adduced before it.

In support of this proposition he cited Kirby J in Minister for Immigration and Indigenous Affairs v SGLB (2004) 207 ALR 12, 33 [73]:

the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal’s operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial.

27    Before his Honour it was argued that the applicants were entitled to procedural fairness and that, in the exercise of the discretion conferred by s 424 of the Act, it was denied. In relation to this Flick J observed that the applicants had the opportunity to make submissions at the time had they wished to do so. Moreover, they were represented by a migration agent who raised no objection to the wife-applicant and daughter giving oral evidence at the hearing.

28    Flick J also questioned (at [51]) whether, if there were such a denial of procedural fairness, it could be now cured by another opportunity to be heard. This is because, as it was put below:

on one view of the facts, the ‘horse had bolted’ – the evidence had been obtained and the inconsistencies in the account exposed (or further exposed).

That is, it is unclear – and, perhaps, could not be clarified – what further preparation the daughter would have required to further explain her own statement if there was indeed a denial of procedural fairness. It was noted that this may not have been the case had the applicants or migration agent requested an adjournment or adequate time to consult with the daughter before she gave evidence. But such an application was not sought and no denial of procedural fairness occurred.

29    It was an important consideration in his Honour’s reasons that no objection was taken at the hearing as to the request by the Tribunal that the wife-applicant and the daughter give evidence. Moreover, no request was made for an adjournment. His Honour considered that different considerations may arise had an adjournment been sought and refused but no such application was made. The objection in relation to the Tribunal seeking to obtain the evidence it did was made sometime after the hearing. In relation to this, his Honour said (at [55]):

Belated objections raised to procedural decisions taken by an administrative decision-maker have the potential to only foster the prospect of claimants taking such a benefit as may follow from the course proposed but reserving unto themselves the ability to later voice objection if the course turns out to be prejudicial to their interests.

30    In relation to the second ground, which was abandoned, which was the alleged failure to take into account relevant considerations, Flick J noted that the particulars in support of it were very similar to those in support of the first ground. It was also noted that to the extent that that ground sought to advance an argument that the Tribunal did not consider the daughter’s age at the time her sister was kidnapped, it was not an argument raised before the FCC, nor before the Tribunal. Essentially, neither the Tribunal nor the FCC could not have erred by failing to take into account a submission not actually submitted.

31    Accordingly, Flick J held that there was no jurisdictional error in the FCC’s decision. The applicants failed to identify any error in the identification of the principles applied when exercising the discretion conferred by s 477(2) for the FCCA to extend time. Indeed, his Honour found that they did not identify any other error, jurisdictional or otherwise in the decision of the FCC.

The current application

32    As mentioned above, the applicants seek an extension of time to appeal the orders of Flick J. In the circumstances of this matter the appeal was required to be filed within 21 days of the date on which the judgment or orders appealed from were pronounced: r 36.03 of the Federal Court Rules. That being so, the last day on which the applicants were entitled to file a notice of appeal was 6 December 2017. The application for an extension of time was filed 5 January 2018, being 30 days after the appeal period had expired.

33    For the purposes of the hearing of this application on 23 January 2018, the applicants were directed to file written submissions no later than 10 business days prior to the hearing date. None were filed and no explanation was provided as to why that was so. That said, the applicants were without legal representation and although the first applicant appeared he could not speak English and was assisted by an interpreter. He made no oral submissions during the hearing which were directed to the issues which were relevant to the application for leave to appeal. His submissions were only to the effect that he wished that the evidence of his Australian resident daughter be excluded from consideration in this matter and that his application for a visa be determined solely on the basis of his evidence.

34    As set out in the Minister’s written submissions, the factors to be taken into account when considering whether to grant an application for an extension of time in which to appeal include the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [4]; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18]; SZNYE v Minister for immigration and Citizenship [2010] FCA 500 at [16].

35    I shall address each of those in turn.

Length of delay

36    It was submitted by the Minister that the length of the delay, being 30 days, was not insignificant. On one hand, a losing party should have adequate time to consider their position and appeal an adverse decision. On the other, a successful party ought to be able to rely on a decision made in its favour without fear of it being challenged. It is with those positions in mind that the periods within which an appeal must be made are defined. It must also be kept steadily in mind that the time limits for reviewing decisions or appealing them are set by the Parliament for ensuring the proper conduct of public administration and finality in relation to decisions of the Executive. That being so, the limits imposed by the Parliament should be accorded due respect whilst taking into account the power afforded to the Court to grant extensions of time.

37    The expiration of 30 days after the time limited for appealing was far less than the 10 month delay which occurred when the applicants sought judicial review of the Tribunal’s decision. In comparison to that it is arguably insignificant. However, when it is considered that the applicants had previously been late in filing an appeal to the FCC and were required to explain that delay, it is reasonable to conclude that they were well aware of the existence, or probable existence, of temporal limitations on their right to appeal the decision of Flick J. Any delay by a person who is aware of the importance of appeal deadlines, is significant. In the present case the delay is not insignificant or of a trifling nature. Were this matter to turn on the question of whether the delay was significant I would have determined that, in the circumstances, it was.

Explanation for the delay

38    There is minimal evidence to support a satisfactory reason for the delay. There is hearsay evidence in an affidavit of the first applicant to the effect that, on 6 December 2017, a friend of his made enquiries with the Court’s Registry about which Court the applicants ought to file an appeal. It is claimed that he was informed that an appeal should be filed in the High Court. It ought to be recalled that 6 December 2017 was the day by which the appellant had to appeal the decision of Flick J. I am unable to accept this evidence on its face. Even if I were, it does not explain why no steps had been taken by the applicants prior to the appeal deadline. The delay is not adequately explained.

Prejudice to the Respondent

39    It was conceded by the Minister that there is no relevant prejudice to him apart from the usual prejudice which generally arises as a result of delay in public administration. It was submitted, however, that it is somewhat prejudiced by the requirement to defend an unmeritorious application. This point is not of great significance in the circumstances of this case.

The merits of the proposed appeal

40    There is one ground of appeal advanced in the proposed notice of appeal although various particulars are asserted which make the ground somewhat wider than it first appears. The thrust of the applicants’ contentions are that:

(a)    The Tribunal was required to exercise its power under ss 424 and 427 to obtain information and take evidence is discretionary and required to be exercised reasonably.

(b)    It was unreasonable to take evidence from the daughter.

(c)    The FCC erred when it decided the Tribunal’s decision to exercise its powers under ss 424 and 427 did not result in procedural unfairness. In turn, the FCC erred in not deciding to extend the time within which the applicants could seek judicial review of the Tribunal’s decision pursuant to s 477(2) of the Act.

(d)    Flick J erred in deciding that the FCC decision not to extend the time within which the applicant could appeal was flawed.

41    It must be kept steadily in mind that the present application is for an extension of time in which to appeal the decision of Flick J in which his Honour refused to grant relief by way of the issuing of Constitutional Writs to the FCC. The applicants had sought to quash the decision of the FCC which had exercised its power to refuse to grant an extension of time in which to seek review of the Tribunal’s decision. The basis of the complaint in relation to the Tribunal’s decision was that it took evidence from the wife-applicant and the Australian daughter who attended the hearing. In this context, the applicants were required to show they have some merits to their argument that Flick J’s decision, that the FCC made no jurisdictional error (or any error) was wrong. That necessitated demonstrating that Flick J erred in not detecting any jurisdictional error by the FCC in its exercise of discretion to refuse an extension of time in which to seek review.

42    Nothing has been advanced by the applicants to suggest the existence of any error on the part of Flick J. Indeed, his Honour’s careful reasons, which have been set out in detail above, are palpably correct and accurately analyse the Tribunal’s powers to obtain evidence pursuant to ss 424 and 427. His Honour also correctly identified that there was no error on the part of the Tribunal in obtaining the evidence which it did and no unreasonableness in the manner in which the power was exercised. It follows that his Honour’s conclusion as to the correctness of the FCC decision or, perhaps more accurately, the absence of any error in that decision is also valid.

43    It is relevant that unreasonableness or irrationality in the exercise of discretion by the Tribunal was not specifically raised before Flick J nor before the FCC. That said, his Honour did, in passing, eschew the suggestion that the Tribunal’s exercise of power was in any way unreasonable. At paragraph [47] of his reasons he said:

Nor could it be said that in so exercising the discretion to “get” information from Aline, the Tribunal was acting in an irrational or unreasonable manner. One of the very factual foundations for the fears being advanced on behalf of the Applicants arose out of the kidnapping of Aline’s sister, Lucy, and the imminent release from imprisonment of those involved in the kidnapping. Albeit a child at the time of the kidnapping, Aline was no longer a child when she was giving evidence to the Tribunal. Her account of the events was unquestionably of relevance to the factual inquiry being undertaken by the Tribunal. Although the Applicants may not have wished for Aline to have been questioned in regard to the statement that she had jointly prepared, and had not proposed themselves to call her as a witness, their unwillingness to do so could not preclude the Tribunal from informing itself by reference to the evidence she gave. Even opposition on the part of the Applicants to the Tribunal pursuing such a course, assuming there to have been opposition, cannot preclude the Tribunal from exercising the discretionary power.

44    With respect, his Honour’s views on this matter are entirely correct and no error is shown to exist in relation to this conclusion. On the basis of those reasons it can be said that it was wholly within the power of the Tribunal to ask questions of persons who attended at the hearing when it was pellucid that they had relevant information about the essential matters underlying the visa application.

45    The applicants have raised in the proposed draft notice of appeal the allegation that the Tribunal acted unreasonably in exercising its discretion. As mentioned this was neither raised before the FCC nor before Flick J and, that being so, it might be observed that it would usually be too late to raise a point of this nature on an application such as this when it was not specifically raised before the “Tribunal” in respect of whose decision relief is sought. Nevertheless, given the demonstrable lack of merit in this ground it is not necessary to discuss it further.

46    Moreover, at a more specifically legal level, the applicants have neither pointed to nor demonstrated any error that Flick J’s conclusion that the FCC acted within its jurisdiction and determined the questions which it was required to do. As Flick J observed, the FCC asked itself the right questions and applied the correct legal tests to consider the issues before it. It did not misconceive nature of its function or the extent of its powers in considering the question. On that basis, if it had made an error it would be an error within jurisdiction: per Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 and per Mortimer J in SZTSU v Federal Circuit Court of Australia [2015] FCA 224.

47    It follows that there are no merits in the grounds of appeal which are advanced in the draft notice of appeal.

Conclusion

48    The applicants have not established any ground on which this Court might exercise the discretion to extend time in their favour. The length of the delay is unreasonable in the circumstances, the applicants have not explained their failure to appeal from the decision below within the time limits prescribed and nor have they shown that their proposed appeal has any merits which might warrant granting the extension to time which has been sought.

49    In such circumstances, the application for an extension of time to appeal from the decision of Flick J must fail.

50    The application for an extension of time in which to appeal is dismissed with costs.

Associate:

Dated:    8 June 2018

SCHEDULE OF PARTIES