FEDERAL COURT OF AUSTRALIA

CXH16 v Minister for Immigration and Border Protection [2018] FCA 1498

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, identified by the pseudonym CXH16, is a citizen of Malaysia who arrived in Australia in March 2015.

2    She applied for a Protection (Class XA) visa in September 2015. A delegate of the Respondent Minister for Immigration and Border Protection refused that application in January 2016. An application for review of the delegate’s decision was then filed with the Administrative Appeals Tribunal (the “Tribunal”) in February 2016. The Applicant failed to attend a hearing before the Tribunal which was held in September 2016. The Tribunal proceeded to review the delegate’s decision in her absence and affirmed the decision not to grant the Appellant a Protection visa. The Tribunal made its decision the day after the hearing.

3    An application was then filed with the Federal Circuit Court of Australia seeking review of the Tribunal decision. That Court dismissed the application on 19 February 2018 pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): CXH16 v Minister for Immigration and Border Protection [2018] FCCA 294.

4    On 14 March 2018, an application was filed in this Court seeking an extension of time within which to appeal from the decision of the Federal Circuit Court together with an application for leave to appeal.

5    The matter first came before this Court on 12 July 2018. The Applicant did not then appear.

6    The hearing took place on 1 August 2018. The Applicant then appeared on her own behalf with the assistance of an interpreter. The Respondent Minister appeared by his solicitor.

7    At the outset of the hearing, the Applicant claimed that she had not been served with any documents by the Respondent Minister and had not received a copy of the Minister’s written submissions prior to the hearing. The assertion that she had not been served with any documents is rejected. The hearing was in any event stood down for a short period to allow for the translation of the Minister’s submissions. A further opportunity to have those submissions read to her again was declined. The matter proceeded to hearing. The Minister advanced his oral submissions first. A further short adjournment was granted after the conclusion of those oral submissions in order to provide the Applicant a further opportunity to consider what submissions she wished to advance.

8    The proceeding is to be dismissed with costs.

The need for an extension of time & leave

9    An application for an extension of time within which to appeal is necessary because r 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal is to be filed within 14 days after the date upon which the judgment appealed from was pronounced.

10    On the facts of the present case, any application for leave to appeal was required to be filed by 5 March 2018. The application for an extension of time was therefore some 9 days out of time.

11    An affidavit filed in support of the application provided in part as follows (without alteration):

2.    APPLICATION FOR FEDERAL CIRCUIT COURT HAS BEEN DISMISSED AND I DO NOT AGREE WITH ITS DECISION

3.    I WISH TO DO FURTHER REVIEW WITH YOUR COURT AND GET A MORE FAIR DECISION

4.    MY APPEAL I DELAYED MY FURTHER APPEAL APPLICATION DUE BECAUSE OF MY FINANCIAL DIFFICULTY FOR THE APPLICATION FEE WHICH I WAS UANBLE TO AFFORD WITHIN 14 DAYS FROM THE FEDERAL CIRCUIT COURTOF AUSTRALIA. I COULD NOT GET HELP IN FILLING OUT ALL THE FORMS REQUIRED DUE TO MY LIMITED ENGLISH. I WISH THE COURT CAN CNOSIDER MY DIFFICULT SITATUION AND ACCEPT MY APPLICATION FOR FURTHER APPEAL.

12    The Draft Notice of Appeal, assuming both an extension of time and leave to appeal were to be granted, provided as follows (without alteration):

1.    AAT and Federal Circuit Court failed to Consider my explanation for my appeal which I believe it is not fair for me.

2.    I am a Malaysia Chinese and I am a victim and being targeted by local loan shark in Malaysia. I will be in great danger and harm if I return.

3.    I cannot go back to Malaysia since I am very scared to be sentenced and discriminated.

4.    Federal court did not well consider of my fears and persecution if return to my home country.

13    Notwithstanding the fact that:

    the extension of time required within which to seek leave to appeal is but a comparatively short period; and

    the Respondent Minister does not claim any prejudice,

no extension of time is granted because:

    the affidavit, either construed by reference to its text or by reference to the Draft Notice of Appeal, fails to identify any factual or legal basis upon which the Applicant formed any sustainable view as to why she did “not agree with [the Federal Circuit Court’s] decision” or why the hearing before the Federal Circuit Court was anything other than “fair”; and

    the assertions as to “financial difficulty” and the absence of any ability to “get help in filling out all the forms” are simply that: assertions. No details are provided of the financial circumstances of the Applicant and there is no detail of what steps she did in fact pursue with a view to seeking assistance within the fourteen days after the primary Judge published his reasons for decision. In any event, it has been said that financial constraints alone are “not an acceptable explanation”: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24] to [26] per Barker J.

An extension of time, it should be noted, may be refused even in those circumstances where an extension occasions no prejudice to the Respondent Minister: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [11], (2015) 238 FCR 341 at 344 per North, Besanko and Flick JJ.

14    The application for leave to appeal is required because the application to the Federal Circuit Court was dismissed pursuant to r 44.12(1)(a) of that Court’s Rules and such a decision is an interlocutory decision: Federal Circuit Court Rules r 44.12(2). It is s 24(1A) of the Federal Court of Australia Act 1976 (Cth) which imposes the requirement for leave to appeal from such a decision: MZZLM v Minister for Immigration and Border Protection [2014] FCA 570 at [2] per Pagone J.

15    Even if an extension of time were to be granted, the application for leave to appeal would have nevertheless been refused because:

    proposed Ground 1 discloses no self-evident failure on the part of the primary Judge to consider the Grounds of Review relied upon;

    proposed Ground 2 fails to identify any appellable error said to have been committed by the primary Judge and is no more than an impermissible invitation for this Court to shun the shackles of identifying appellable error and to further shun the shackles confronting the Federal Circuit Court in its search for jurisdictional error and not factual error;

    proposed Ground 3 is nothing more than a statement of a fear expressed by the Applicant, a fear that was in any event considered by the Administrative Appeals Tribunal; and

    proposed Ground 4 fails to identify any way in which the primary Judge is said to have failed to “consider … [the Applicant’s] fears and persecution” and, in any event, misstates the function of the Federal Circuit Court, the function of that Court being to scrutinise the findings made by the Tribunal with a view to detecting any legal error.

The reasons for decision of the primary Judge (it should be noted) briefly – but adequately – address the written “submissions” which had been annexed to the Application as filed: [2018] FCCA 294 at [21] to [31]. To the extent that proposed Ground 1 seeks to contend that the primary Judge “failed to Consider [the Applicant’s] explanation for [her] appeal”, that proposed Ground is denied by the consideration in fact given by the primary Judge to the “submissions”.

16    It is the Applicant who bears the onus of persuading the Court that leave to appeal should be granted: MZZLM v Minister for Immigration and Border Protection [2014] FCA 570 at [6] per Pagone J. On the facts of the present case, that onus has not been discharged and the application for leave to appeal would accordingly have been refused because the draft Grounds of Appeal expose no real prospects of success: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J. Expressed differently, the decision of the primary Judge is not attendant with “sufficient doubt” to warrant the grant of leave: cf. Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 per Sheppard, Burchett and Heerey JJ.

17    Inevitably in most litigation, one party may be satisfied with the outcome; the other party may well be dissatisfied. Although any litigant is entitled to pursue any sustainable “further review”, no litigant is entitled to pursue litigation simply because of dissatisfaction with a decision made.

18    Even if an extension of time had been granted, any appeal would have been futile because the Draft Notice of Appeal fails to identify any arguable Ground of Appeal.

CONCLUSIONS

19    Both the application for an extension of time and the application for leave to appeal are without any self-evident merit.

20    Both applications should be refused, although it is the refusal to grant an extension of time which dooms the present proceeding to failure. The proceeding should be dismissed.

21    There is no reason why the Applicant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The application for an extension of time is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    5 October 2018