FEDERAL COURT OF AUSTRALIA

DBQ16 v Minister for Immigration and Border Protection [2019] FCA 135

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 or r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth).

2.    The applicant is to pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    The applicant is a citizen of Nepal and claimed to fear harm in Nepal as a divorced, single woman, and as a victim of sexual abuse. The applicant claimed that she entered into an inter-caste marriage against the wishes of her family, who then rejected her. She claimed to fear harm from her elder brother, N. As summarised by the primary judge at [7]-[8], the applicant’s representative before the Tribunal submitted that the applicant faced serious harm in Nepal as a member of a particular social group comprising “single women without male protection”. The representative further submitted that the applicant faced a real risk of significant harm from sex trafficking, and that she could not get state protection. The applicant also claimed that she would not be able to get a job and would face economic hardship in Nepal.

2    The application before the Court is for an extension of time to appeal from the judgment of a judge of the Federal Circuit Court of Australia given on 7 August 2018. That judgment dismissed, with costs, the application filed in that Court on 18 October 2016 seeking judicial review of a decision of the Administrative Appeals Tribunal dated 21 September 2016 affirming the decision not to grant the applicant a protection visa.

3    When this application for extension of time was called for hearing there was no appearance by or on behalf of the applicant. The matter was called outside the courtroom and a search was also made for the applicant at the Registry on Level 17. The applicant was not found.

4    In those circumstances the legal representative of the Minister applied for an order that the application be dismissed. She tendered correspondence from the Registry and from the Minister’s solicitors sent to the applicant’s email address notifying the applicant on two occasions of the hearing today.

5    I make that order under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) or under r 5.23(1)(b)(i), read with r 5.22(c), of the Federal Court Rules 2011 (Cth).

6    Although I do not have the benefit of any written or oral submissions by on behalf of the applicant, it may save time and costs later if I indicate my present views on the application for an extension of time.

7    The Minister accepts that the applicant was one day out of time to lodge her notice of appeal.

8    The applicant filed an affidavit affirmed by her on 29 August 2018 in which she states that she thought that the deadline was 28 days from the date of judgment of the Federal Circuit Court, rather than 21 days.

9    The four grounds on which the applicant relied in the Federal Circuit Court were as follows:

1.    I am not satisfied with the Tribunal Member’s decision as the decision has been involved an error of law.

2.    The Member failed to apply natural justice and procedural fairness correctly in determining my application.

3.    The Tribunal Member’s arbitrary views undermined my claims of fear of serious harm on return to Nepal despite the fact that I am a rape victim and I have a real fear of serious harm on return and reside in Nepal.

4.    The AAT did not comply with s 359AA in relation to adverse information that it put to me.

10    These grounds failed. Before the Federal Circuit Court the legal representative of the Minister also addressed the purported s 438 certificate which was the subject of an affidavit made on 23 March 2017 and filed on behalf of the Minister, annexing the purported certificate and documents purportedly covered by that certificate.

11    Attached to the applicant’s affidavit of 29 August 2018 is a draft notice of appeal stating the following grounds:

1.    The appellant is not agreed with the judgment of the Federal Circuit Court Judge because his Honour did not give the appellant justice on the ground that the second respondent did not disclose the certificate issued by the delegate of the first respondent pursuant to section 438 of the Migration Act 1958 (Cth) and it failed to accord the appellant procedural fairness.

2.    The appellant argues that the second respondent made a jurisdictional error found in MZAFZ-v- Minister for Immigration and Border Protection (2016) 243 FCR 1, [2016] FCA 1081 and Minister for Immigration and Border Protection -v- Singh (2016) 244 FCR305,[2016] FCAFC 183.

12    The Minister, by his written outline of submissions, having noted that the relevant matters to be considered in determining whether time should be extended include the length of the delay, the presence or absence of prejudice to the respondents, and the merits of the proposed appeal, contended that the applicant had not provided a satisfactory explanation for the delay. The submission continued: “Critically, the Minister submits that the proposed appeal has no reasonable prospect of success. It is primarily for this reason that the Minister respectfully submits that the Court should refuse to grant the application for an extension of time.”

13    The Minister submitted, in respect of the appeal’s prospects of success, that the matters in the draft notice of appeal fail at a factual level. The Tribunal did discuss the s 438 certificate with the applicant and her registered migration agent at the hearing. The Tribunal informed the applicant that the certificate was attached to documentation which “is of no relevance to the current review and which the Tribunal is not taking into account in any way in assessing the current review application. Accordingly, the Tribunal has not taken any further steps to verify the validity or otherwise of the certificates (sic) attached to that information.” At [46], the primary judge, having examined the documents to which the certificate purportedly applied, identified those documents as relating to the applicant’s subclass 572 visa documents which applied to: the Tribunal’s request for the Minister’s Department’s file and electronic Departmental records; an assessment of the applicant’s subclass 572 visa application, including fund calculations; and further electronic Departmental records.

14    The Minister submitted that the conclusion of the primary judge at [50], that the Tribunal did not fall into jurisdictional error in relation to the manner in which it dealt with the certificate and the documents purportedly covered by it, was without error.

15    Having accepted, at [47], that the certificate was on its face invalid, the primary judge reasoned, at [48]-[49]:

There is, however, tension between what the Tribunal states at footnote 10 to its reasons (namely that the documents on the file were of no relevance to the review) and what the Tribunal states at [27] where it took the view that the absence of any information in the applicant’s student visa file about her brother named N raised credibility concerns which the Tribunal considered “significant”.

In my view, after weighing these competing factors, the Tribunal did not act on the certificate because it examined the documents purportedly covered by the certificate to determine their relevance to the review and it disclosed at the Tribunal hearing the issue of substance to which the documents apparently related, namely the existence of the applicant’s brother N. While the documents to that extent did have relevance to the review, notwithstanding what the Tribunal said at its footnote 10, that relevance abated when the Tribunal accepted, notwithstanding its concerns, the applicant’s claims concerning her brother. In my view, the Tribunal’s acceptance of the claim and its discussion of the issue with the applicant at the hearing met the Tribunal’s obligations of procedural fairness under s.425 (and possibly also s.424A).

16    The Minister submitted that even if some error was demonstrated in the approach or findings of the Tribunal in relation to the certificate, it could not have made any difference to the outcome of the review. This was because the Tribunal ultimately accepted the applicant’s claims about her brother.

17    The applicant filed no written submissions. As I have said, the applicant did not appear at the hearing so she made no oral submissions.

18    I would accept the applicant’s explanation for the delay. Given the very short period for which an extension of time is required, I would have considered the proposed grounds of appeal in a light most favourable to the applicant.

19    I would adopt the approach explained by Perry J in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [10] that:

…it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62].

See also Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21], Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] and Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-[17] per Thawley J.

20    In my opinion, the proposed grounds of appeal would have insufficient prospects to warrant the grant of leave even for the very short extension of time which the applicant requires. The Tribunal disclosed the existence of the s 438 certificate and I do not see that it is arguable, at any level, that the applicant lost any opportunity to advance her case by reason of the certificate. The decision of the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 does not avail the applicant.

21    As indicated by the primary judge, the Tribunal accepted, at [29], the applicant’s claims in respect of her brother N. It is not arguable that the primary judge erred in concluding, at [50], that the Tribunal did not fall into jurisdictional error in relation to the manner in which it dealt with the certificate of the documents purportedly covered by it.

22    In light of the applicant’s failure to appear at the hearing, the application for an extension of time is dismissed, with costs.

Associate:

Dated:    14 February 2019