FEDERAL COURT OF AUSTRALIA

AXO15 v Minister for Immigration and Border Protection [2018] FCA 1195

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application for an extension of six months and 17 days in which to file the applicant’s proposed notice of appeal from the decision of the Federal Circuit Court given on 14 August 2017: AXO15 v Minister for Immigration & Anor [2017] FCCA 1918. The applicant filed the application in this Court on 21 March 2018 together with his affidavit in support dated 19 March 2018 and a draft notice of appeal.

Background

2    The applicant is a citizen of the People’s Republic of China who arrived in Australia as long ago as 18 September 1997 on a false Taiwanese passport in another person’s name. He applied for a protection visa on 4 August 1998 that the Minister’s delegate refused on 29 October 1998. The then Refugee Review Tribunal affirmed the refusal on 25 August 1999.

3    It appears that the applicant disappeared from trace by the Department to contact him, let alone remove him, until he applied for a protection visa on the complementary protection ground on 6 November 2013. Another delegate of the Minister refused to grant that visa on 9 May 2014. The Refugee Review Tribunal initially affirmed that decision on 8 May 2015 but, by consent, on 17 November 2015 the Federal Circuit Court set that decision aside and ordered the Tribunal to determine the review according to law.

4    On 25 July 2016, the applicant appeared before the Administrative Appeals Tribunal and presented evidence and argument for a little under two and a half hours, as the primary judge found.

5    On 23 August 2016, the Tribunal decided to affirm the delegate’s refusal to grant him a visa. It suffices to say that the Tribunal found that the applicant was not a credible witness or a witness of truth. It found that he was not genuinely interested in, or a genuine practitioner of, the Yi Guan Dao religion, also known as Tao, as he had claimed. The Tribunal found that was a religious sect that is banned in China. The applicant claimed that he only had started practising as a follower of Tao at home in early 2014.

6    The Tribunal rejected, as had the previous Refugee Review Tribunal in 1999, the applicant’s other claims, namely that he had been involved in, first, a protest against family planning in China, and secondly, an anti-government organisation. Initially, he had also claimed that he had departed China illegally. However, in respect of the illegal departure ground, the applicant gave evidence to the Tribunal, that it accepted, that he left China on his own, genuine, passport. But, the Tribunal did not accept the applicant’s further claim that he had bribed officials to leave on that genuine passport. It also rejected his claims that he had been detained on any occasion by police or security guards in China for any of the reasons he claimed, or been of any adverse interest to the Chinese authorities or to anyone else at the time of his departure, for any of the reasons that he claimed. As it said: “The Tribunal rejects his claims in their entirety”.

The application for an extension of time

7    In the applicant’s affidavit in support of his application for an extension of time, he said that he did not agree with the trial judge’s decision, wished to further review that in this Court to get “a more fair decision”, and that, due to his financial hardship, he had delayed filing the notice of appeal because, he claimed, he could not afford the application fee within the required time. He sought that the Court consider his “difficult situation” and grant the extension.

8    The applicant provided no evidence of his financial circumstances or of any application to the Court or to a registrar to excuse him from having to pay any relevant filing fees, nor did he provide any evidence of paying any filing fee he had been required to pay or how he may have come to pay it.

The trial judge’s decision

9    Before the trial judge, the Minister disclosed that, on 7 December 2015, a certificate had been signed by the Assistant Director, Protection and Processing Administration, New South Wales Onshore Protection purportedly pursuant to s 438(1)(a) of the Migration Act 1958 (Cth). The material to which the certificate related consisted of internal file notes identifying, substantively, that the Federal Circuit Court, by consent, had remitted the matter to the then Refugee Review Tribunal to be heard according to law and included a tax invoice receipt.

10    The issue of such a certificate to certify in writing that the disclosure of any matter contained in those documents was information that would be contrary to the public interest, particularly by a senior officer of the Department, was a plain abuse of the power. The documents were already the subject of an order made in public by the Federal Circuit Court by consent of the Minister. It is inconceivable how any person in the position of the certifier could have granted such a certificate honestly or properly. Its issue was an abuse of the power. The solicitor for the Minister has said today that the Departmental policy about the grant of such certificates has been rewritten, no doubt as a result of scrutiny by the Courts, such as the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and subsequent decisions: see also what I said in SZTGS v Minister for Immigration and Border Protection [2018] FCA 329 at [5]-[12].

11    The trial judge heard the application before him as a final hearing. He dealt with the eight asserted grounds of review in the application below that, in substance, challenged the credibility findings of the Tribunal. The grounds concentrated on the applicant’s alleged devotion to, and practice of, the Tao religion and the alleged harsh persecution of that religion’s adherents in China.

12    His Honour found that, in substance, the Tribunal had correctly identified the applicant’s claims, considered them and rejected them on bases that were not susceptible of judicial review. I see no arguable error in the way in which his Honour dismissed what were substantively attempts in the grounds put below to seek merits review. His Honour also noted that the documents the subject of the improperly issued s 438 certificate could not possibly have made any difference to the outcome of the proceedings below. I agree.

The proposed appeal

13    In his draft notice of appeal, the applicant asserted that, first, both the Tribunal and trial judge failed to consider his supporting documents, without identifying what those documents might be or in what way any such failure had a relevant effect on the validity of the Tribunal’s decision, secondly, he was a Chinese citizen and, were he to be returned to China, his commitment to Taoism would leave him in a position where he would face persecution by the Chinese Government because of his beliefs, thirdly, the Tribunal and the trial judge did not consider his fear of persecution were he returned to China, and, fourthly, the Tribunal’s decision about his creditworthiness was groundless and affected his dignity, faith and integrity as a whole.

14    None of those proposed grounds identified any intelligible basis on which it could be said that the Tribunal made a jurisdictional error or that the trial judge erred in dismissing the application below. Although the proposed grounds do not mirror exactly the grounds of review before his Honour, they are more synthesised yet reflect the same fundamental challenges in respect of the Tribunal’s credibility-based findings, including those relating to the applicant’s alleged Taoist beliefs.

Consideration

15    An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4], and see also at 539-543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

16    In addition, the criteria for granting leave to appeal require an applicant to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

17    In my opinion, the applicant has given no satisfactory explanation of his failure to file his notice of appeal in accordance with r 36.03 of the Federal Court Rules 2011: i.e. within 21 days of the trial judge’s decision. The delay of six and a half months is significant. The proposed grounds of appeal reveal nothing that could possibly justify the grant of an extension of time, let alone leave to appeal. They are manifestly hopeless.

Conclusion

18    For these reasons, I dismiss the application for an extension of time with costs.

Associate:

Dated:    10 August 2018