FEDERAL COURT OF AUSTRALIA

FHO17 v Minister for Immigration and Border Protection [2019] FCA 242

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

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

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant seeks an extension of time and leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”): FHO17 v Minister for Immigration & Anor [2018] FCCA 2919.

2    The FCCA judge dismissed the applicant’s application for judicial review because his Honour was not satisfied that the application raised an arguable case of jurisdictional error by the second respondent (“Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent (“Minister”) to refuse the applicant a protection visa.

3    The FCCA judge’s decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCCA Rules”) and was therefore interlocutory in nature: r 44.12(2) of the FCCA Rules. Accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

4    Pursuant to r 35.13 of the Federal Court Rules 2011, the applicant was required to file any application for leave to appeal within 14 days after the date on which the judgment appealed from was pronounced or the order was made. The judgment and orders of the FCCA were made on 15 October 2018, and consequently, the application for leave to appeal was required to be filed by 29 October 2018. Instead, the application was filed on 6 November 2018 (seven days out of time). The applicant therefore also requires an extension of time to bring the application for leave to appeal.

5    In support of his application, the applicant filed an affidavit annexing a draft notice of appeal containing the following two grounds:

1.    The [FCCA judge] failed to consider that the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act [sic].

2.    The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

6    The applicant did not file written submissions in support of his application. At the hearing, he appeared with the assistance of an Urdu interpreter. The applicant expressed his fear that his life would be in danger if he was required to return to Malaysia, but did not otherwise make any submissions in support of the application.

Background and applicant’s claims for protection

7    The applicant, a citizen of Malaysia, entered Australia on 17 May 2017 as the holder of a tourist visa. On 23 May 2017, he applied for a protection visa. The FCCA judge set out the applicant’s claims for protection at [6] and [7] of his Honour’s reasons as follows:

[6]    The applicant’s claims were set out in his protection visa application and related to a debt owed to a Malaysian bank. His claims were, in summary, as follows:

a.    because of difficulties with his business, he had been unable to repay his credit card debt, the debt was initially RM3,000, increased to RM6,000 and at the time of his application was RM146,792.40; and

b.    if he returned to Malaysia, he would not be able to travel to any other country if he did not settle the debt.

[7]    At the Tribunal hearing on 24 October 2017, the applicant also indicated that, should he return to Malaysia:

a.    bankruptcy proceedings would be brought against him, and if he were prosecuted he would go to jail;

b.    he had been blacklisted and could not borrow money in Malaysia;

c.    debt collectors “called him and threatened him and wanted to make him bankrupt...”; and

   d.    the debt collectors are “like gangsers” [sic].

Tribunal proceeding

8    The applicant sought merits review of the delegate’s decision and attended a hearing before the Tribunal on 24 October 2017.

9    The Tribunal accepted that there is a real chance that the applicant will be the subject of bankruptcy proceedings if he returns to Malaysia (para 24 of decision record). The Tribunal was not satisfied that there was a real chance that the applicant would be jailed as a consequence of any bankruptcy proceedings brought against him (para 25 of decision record).

10    The Tribunal concluded that the Malaysian bankruptcy law was a law of general application and did not accept that enforcement of that law against the applicant constitutes persecution for the purposes of s 5J of the Migration Act 1958 (Cth) (“Act”) (para 26 of decision record).

11    The Tribunal found that the applicant had embellished his evidence about what he fears will happen to him if he returns to Malaysia. In particular, at para 28 of the decision record, the Tribunal stated that it did not accept that the applicant was indebted to gangsters or that gangsters or debt collectors have ever threatened the applicant or his family members with serious harm or significant harm. The Tribunal did not record any statement to the effect that either the applicant or his family members had been threatened with any particular harm, apart from the threat of being “blacklisted” (which threat has been made good, on the applicant’s evidence). The Tribunal did record (para 17 of decision record) that it had put to the applicant that the Tribunal had no information that the bank would harm the applicant when it tried to recover the applicant’s debt.

12    Ultimately, the Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Act.

FCCA Proceeding

13    Before the FCCA, the applicant advanced two grounds of review as follows (errors in original):

1.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

2.    The Tribunal constructively failed to exercise its jurisdiction:

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

14    The FCCA judge referred to oral submissions made to him by the applicant as follows (at [14] of his Honour’s reasons):

I invited oral submissions from the applicant this afternoon. He is concerned about his indebtedness, which apparently commenced in about 1997 and has been increasing exponentially. The applicant has apparently had experience with aggressive debt collectors. However, as the Tribunal found, the real risk faced by the applicant is one of bankruptcy because he cannot pay his debts. That bankruptcy, as the Tribunal found, would not amount to persecution.

15    In rejecting the first ground of review, the FCCA judge said (at [16] of his Honour’s reasons):

By Ground 1, the applicant contends that the Tribunal had no jurisdiction to make its decision because “its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.” This ground is without merit. This is not a case in which the Tribunal was not satisfied of the factual basis for the applicant’s claims. Rather, the Tribunal accepted most of the applicant’s claims, but found that the harm that the applicant claimed to fear did not engage Australia’s protection obligations.

16    In relation to the second ground of review, the FCCA judge said (at [18] and [19]):

The applicant’s contention is misconceived. The documents provided by the applicant at the hearing related to the quantum of the debt owed by the applicant and showed that debt collectors had been engaged. The Tribunal accepted this evidence. Contrary to the applicant’s assertion, the Tribunal did not disregard the documents prior to making a finding as to the applicant’s credibility.

The Tribunal assessed the balance of the applicant’s claims that it had accepted against independent country information before it. On the basis of that information, the Tribunal considered that the applicant’s claims did not engage Australia’s protection obligations. Those findings were open to the Tribunal on the material before it and for the reasons it gave. Accordingly, Ground 2 discloses jurisdictional error on the part of the Tribunal and no arguable case is raised.

17    At [20], the FCCA judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error and accordingly dismissed the application.

Application for an extension of time and leave to appeal

Legal principles

18    The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28].

19    The relevant considerations in deciding whether to grant an extension of time include the length of the delay; the applicant’s explanation for the delay; any prejudice to the respondent; and the merits of the application: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341 at [10].

20    The principles governing the grant of leave to appeal are well established, although each case must be considered on its merits. Generally, an applicant for grant of leave must establish: (1) that in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the Appellate Court; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: MZZLM v Minister for Immigration and Border Protection [2014] FCA 570 at [5].

21    These considerations are cumulative such that leave to appeal will not be granted unless both limbs are made out: Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; (2016) 237 FCR 276 at [12].

22    If the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then the application for leave to appeal should not be granted.

Merits of the draft notice of appeal

23    The Minister submitted that the application for an extension of time and leave to appeal ought to be refused because the proposed substantive appeal is without merit. The Minister contended that the draft grounds of appeal fail to identify any basis for the Court to be satisfied that an extension of time is warranted.

24    The Minister further submits that the FCCA judge’s decision to dismiss the application is not attended by any, let alone sufficient doubt or error; nor is there any jurisdictional error in the Tribunal’s decision. The Minister submits that in those circumstances there would not be substantial injustice if leave to appeal were refused.

First proposed ground of appeal (failure to consider that the Tribunal had no jurisdiction because its “reasonable satisfaction” was not arrived at in accordance with the Act)

25    This proposed ground repeats the first ground of review in the FCCA.

26    The applicant did not identify any particular aspect of the Tribunal’s reasons that the FCCA judge should have considered, or any aspect of the Tribunal’s decision to show that it was not made in accordance with the Act.

27    In the absence of any explanation of the first proposed ground, I am not satisfied that it has any merit.

28    I note that, on reading the Tribunal’s decision, I saw nothing to indicate that the Tribunal did not fully and accurately identify and address the applicant’s claims as made to the Tribunal.

Second proposed ground of appeal (FCCA dismissed application without considering legal and factual errors in Tribunal decision)

29    The applicant did not identify any legal or factual error in the Tribunal’s decision, or any failure on the part of the FCCA judge to consider any relevant matter.

30    In those circumstances, I am not satisfied that the second proposed ground of appeal has any merit.

31    I also note that, on reading the Tribunal’s decision, I saw nothing to indicate that the Tribunal had made any legal or factual error.

Additional issue

32    The application for leave to appeal raises the following additional contentions:

The [Federal Magistrate] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation [sic].

33    The Minister noted that no such contentions were raised in the FCCA and submitted that there is no error in the FCCA judge not addressing a contention that was not put to the Court.

34    The Minister also noted that s 91R was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) for applications for protection visas made on or after 18 April 2015. As the applicant made an application for a protection visa on 23 May 2017, s 91R had no application.

35    In the absence of any explanation from the applicant, and having regard to my observations above concerning the Tribunal decision record, I am also not satisfied that these additional contentions have any merit.

Conclusion

36    The grounds of appeal contained within the draft notice of appeal have no reasonable prospects of success. Accordingly, it is unnecessary to consider whether the applicant’s delay should preclude him from the relief sought because, in the absence of any merit, the application for an extension of time and leave to appeal should be refused.

37    The applicant should pay the Minister’s costs of the application.

Associate:

Dated:    28 February 2019