FEDERAL COURT OF AUSTRALIA

AOD17 v Minister for Home Affairs [2018] FCA 1853

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time within which to seek leave to appeal be refused.

2.    The applicant pay the first respondent’s costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an “appeal” from an order made by the Federal Circuit Court of Australia on 4 June 2018. The applicant’s application for judicial review was listed for hearing on that day. The applicant did not appear at the hearing. The Court made an order pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) that the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal be dismissed. Rule 13.03C(1)(c) gives the Federal Circuit Court the power to dismiss an application in circumstances where an applicant is absent from a hearing.

2    The applicant is a citizen of India. He first arrived in Australia in 2009 as the dependant spouse of the holder of a Student visa. The applicant has not departed Australia since he arrived. The Student visa ceased on 31 March 2011. On 15 March 2011, the applicant applied for a Skilled Graduate (VC 485) visa. On 2 August 2012, the applicant’s application was refused because he did not meet the English language requirements. Thereafter, the applicant took the following steps: he applied for a review by the Migration Review Tribunal, he lodged an appeal with the Federal Circuit Court, he lodged an appeal with this Court, and he made an application for Ministerial intervention. None of those steps were successful. On 28 March 2014, the applicant applied for a Protection visa. On 21 October 2015, his application was refused by a delegate of the Minister. He applied for a review by the Tribunal.

3    The applicant is a Hindu and his wife is from the Sikh religion. He was divorced from his wife in 2012. His claim to fear harm if he returns to India is related to his religion and his marriage. He fears that Sikh people will kill him if he returns to India. The Tribunal had a number of concerns about the applicant’s evidence. It found that the applicant was not a credible witness and had not been truthful in relation to his fears about returning to India. It was prepared to find that the applicant entered Australia on a valid and legally issued Indian passport. It said that it had assessed the applicant’s claim against India as his country of nationality. It said that it accepted that the applicant was from the majority Hindu religion and that his former wife was from the Sikh religion. It said that soon after the applicant arrived in Australia, he experienced marital problems and divorced his wife in 2012. The Tribunal said that beyond these issues, it did not believe any of the claims made by the applicant, or that he genuinely held a fear of harm should he return to India. It said that in reaching this view, it found the applicant’s evidence at the hearing to be vague and inconsistent. In the result, the Tribunal said that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention and nor was it satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).

4    The Minister submits that the order dismissing the application on the basis of a failure to appear is interlocutory. That submission is correct. It was therefore necessary for the applicant to obtain leave to appeal. An application for leave to appeal is some 11 days out of time. The Minister does not oppose the Court proceeding on the basis of treating the applicant’s “appeal” as, in effect, an application for leave to appeal.

5    The applicant’s Draft Notice of appeal contains the following grounds:

1.    I am the Applicant and I am authorised to make this affidavit

2.    There is jurisdictional error in judgment

3.

Respected Federal Circuit court Judge failed to point out the Jurisdictional error in decision of Tribunal

“

In Paragraph 35 to 39, Tribunal has stated DFAT assessment about India. They state that “DFAT further assesses that while people in Punjab often face minor levels of societal discrimination on the basis of their religion, this discrimination rarely escalates to significant levels, and rarely involves the targeting of people of particular religious group” This clearly say that there is problem of social discrimination. Moreover this can escalate to significant levels on few occasions. In my case its same, threat to my life is real. Tribunal member failed to put on this assessment.

Tribunal decision refers to a decision of court which refers to providing protection to inter cast married couple. This is ground situation that police donot give any protection so people had to move to court so police is forced to give protection. In few cases people are saved but mostly they are killed before this court process.

In paragraph 49 to 51, Tribunal member stated that there is no significant threat to me as I have not spoken to my mother in law since 2012. Tribunal member failed to understand that I have not gone to India. My mother in law cannot do anything to me if I am in Australia. Member cannot predict amount of fear sitting in Australia. Once I am in India then these people can kill me or hurt me but they cannot do anything in Australia. Member predicting risk to my life without any substantive ground is wrong. There is jurisdictional error in the decision of tribunal.”

    (Original formatting retained.)

6    On 31 July 2018, a Registrar of this Court made a number of orders designed to facilitate the hearing of the appeal. One order related to the filing of an outline of submissions by the applicant. No such outline has been filed.

7    The test on an application for leave to appeal is well-known (Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397). The application is brought in respect of an order dismissing the applicant’s application for judicial review. The basis of the order was the non-appearance of the applicant. The primary judge did not deliver any reasons. The applicant received proper notice of the hearing and there is no dispute that the applicant did not appear. Until today, the applicant had not provided an explanation for his non-appearance. Today the applicant told me that he did not attend the Federal Circuit Court hearing because he had typhoid. He did not consult a doctor, but obtained medicine from a pharmacy. He did not contact the Court to advise the Court that he would not be attending. I find this explanation difficult to accept.

8    As far as the application for an extension of time is concerned, the period of the delay is not significant and the Minister will not suffer any prejudice if time is extended. An “explanation” for the delay has been provided by the applicant in his affidavit, although it is not particularly satisfactory. Nevertheless, I would not extend time because I think that the application for leave to appeal is hopeless. I have reached that view for the following reasons. The explanation which has been provided by the applicant for his non-appearance before the Federal Circuit Court is difficult to accept, but in any event, there is no reason to think that the Federal Circuit Court’s decision is not correct. Relatedly, there was an alternative course open to the applicant being a course which he should have pursued. It was open to the applicant to make an application under r 16.05(2A) of the Federal Circuit Court Rules to have the primary judge’s orders set aside. That was the appropriate course (see, for example, MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J). Furthermore, the grounds of the appeal, should leave be granted, are either so general as to not reveal an error on the part of the primary judge, or they relate to the substantive application for judicial review. The only ground of appeal that relates to the primary judge’s decision to dismiss the application is an assertion that there is jurisdictional error in the judgment. No particulars are given and again, there is no reason to think that the Federal Circuit Court’s decision is not correct.

9    I would add as an additional reason to refuse this application that, insofar as it is relevant to consider the grounds of the application for judicial review, I have read the reasons of the Tribunal and the submissions of the Minister. I have also given the applicant the opportunity to say what he wanted to say about that matter. Even if time was extended, leave was granted and the appeal was allowed and the matter remitted to the Federal Circuit Court, there is no reason to think that there is any merit in the application for judicial review.

10    In those circumstances, I will make an order that the application for an extension of time within which to seek leave to appeal be refused with costs.

Associate:    

Dated:    13 December 2018