FEDERAL COURT OF AUSTRALIA

DGE17 v Minister for Home Affairs [2019] FCA 567

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

3.    The name of the first respondent in this proceeding be amended to “Minister for Home Affairs”.

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

REASONS FOR JUDGMENT

(Ex tempore judgment revised from transcript)

GLEESON J:

1    The applicant seeks an extension of time and leave to appeal from the judgment of a judge of the Federal Circuit Court of Australia (“FCCA”), given on 26 June 2018: DGE17 v Minister for Immigration & Anor [2018] FCCA 1682. The FCCA judge dismissed the applicant’s application for judicial review of a decision of the second respondent (“Tribunal”), affirming a decision of a delegate of the first respondent (“Minister”) not to grant him a protection (Class XA) visa, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCCA Rules”) because his Honour concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error.

2    The applicant represented himself at the hearing before this Court today. He did not file written submissions. Although assisted by an interpreter in the Malay language, he did not make any oral submissions.

BACKGROUND AND CLAIMS FOR PROTECTION

3    The applicant, a citizen of Malaysia, entered Australia as the holder of an Electronic Travel Authority visa in October 2016. On 9 January 2017, the applicant applied for a protection visa.

4    The applicant’s claims in his visa application were set out in the reasons of the FCCA judge, at [5] of his Honour’s reasons, as follows:

[5]    In his visa application, the applicant advanced the following claims:

a)    he left Malaysia because of the economic conditions. He had been unemployed since December 2015, when his employer retrenched half of the workforce without compensation. As he had lost his monthly income, he decided to leave Malaysia to “seek fortune and gain life experience”;

b)    if returned to Malaysia, he would face difficulties obtaining employment suitable to his qualifications, due to the “worrying” employment market and the economic downturn, which forced companies to retrench employees. The inflation rate was increasing and he would struggle to survive; and

c)    he had sought new jobs, but his applications were not successful as many of the companies in Malaysia were downsizing.

5    The protection visa application was refused by the delegate on 7 March 2017.

6    The applicant sought merits review of the delegate’s decision and attended a hearing before the Tribunal on 22 June 2017.

7    According to the FCCA judge (at [6] of his Honour’s reasons), the applicant advanced the following additional claims at the Tribunal hearing:

a)    he came to Australia to earn a better income in order to fund renovations on his family home and tuition fees for his brother at a religious school; and

b)    if returned to Malaysia, he would be “chased and looked for” by the police. The police had “chased” him and his friend two years prior because his friend had stolen a motorbike. The police were in the area not long before he travelled to Australia and he was concerned that they were still looking for him.

8    On 28 June 2017, the Tribunal affirmed the delegate’s decision to refuse the grant of the visa.

9    At para 16 of its decision record, the Tribunal stated:

16.    As discussed above, the Tribunal has not accepted that the applicant was wanted or being sought out by the police or authorities in relation to a criminal incident involving a friend. It follows that the Tribunal is not satisfied that the applicant would be sought out by police or authorities in the future on this basis. The Tribunal is not satisfied therefore that the applicant faces a real chance of serious harm based on this criminal incident.

10    At paras 19 and 20, the Tribunal stated:

19.    The applicant has stated that he travelled to Australia to find a better job. He claims that the harm he will suffer will be receiving a lower income, which may mean he cannot support his brother at religious school or provide money for renovation of the family home. He has not claimed that he fears this harm for one of the reasons set out in s.5J(1)(a) if he returned to Malaysia in the reasonably foreseeable future, and nor is there evidence that the harm would be for one of those reasons. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm for reasons of race, nationality, membership of a particular social group or political opinion.

20.    The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation were he to return to Malaysia in the reasonably foreseeable future.

11    In addressing the question of complementary protection, the Tribunal concluded at paras 27 and 28 of its decision record:

27.    The Tribunal accepts that goods may be expensive and that the applicant would like to earn a higher income. However the Tribunal is not satisfied that if he was removed from Australia to Malaysia, there is a real risk of any of the types of significant harm set out in the legislation. The applicant has had jobs in the past, and his family own their home. His siblings are also working to provide income. While there may be some financial strain, the evidence does not indicate that the applicant would be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, or any other kinds of significant harm.

28.    The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm.

Proceedings in the FCCA

12    The applicant sought judicial review of the Tribunal’s decision. The applicant advanced three grounds of review as follows (errors in original):

1.     The decision is effected by an error law.

2.    The decision was made without solid proofs.

3.    It is requested to sen[d] my application to Administrative Appeals Tribunal for [re]consideration.

13    The FCCA judge noted (at [15] of his Honour’s reasons) that the applicant told the Court he was in Australia because of financial problems and to make money to support his family. The FCCA judge noted that the applicant hoped to remain in Australia for a further two years to meet what he accepted as his family obligations.

14    At [17], the FCCA judge stated that the applicant was unable to point to any arguable case of jurisdictional error by the Tribunal and did not advance anything orally that would support such an argument.

15    In respect of the grounds of the application, the FCCA judge found as follows:

(1)    Ground 1 was a bare assertion of jurisdictional error that could not be made out. In any event, the Tribunal applied the correct legal test under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (“Act”) (at [18]). The FCCA judge observed, relevantly:

The Tribunal also noted the applicant’s economic claims but was not satisfied that there was a real chance of serious harm for reason of race, nationality, membership of a particular social group or political opinion. The Tribunal then addressed and disposed of the applicant’s claims by reference to the legal test for complementary protection.

(2)    Ground 2 was without merit and it could not be said that there was no evidence upon which the Tribunal’s decision was based. The FCCA judge noted that the Tribunal considered the applicant’s oral evidence at the hearing and accepted some of the applicant’s claims, but ultimately was not satisfied that he would face serious or significant harm on these bases. The FCCA judge also noted that the Tribunal rejected a number of the applicant’s claims on the basis of his vague and inconsistent evidence and that the Tribunal’s findings on the applicant’s claims in relation to the Malaysian economy were further supported by country information from the Department of Foreign Affairs and Trade and BBC World News (at [19]).

(3)    Ground 3 was not a proper ground of review (at [20]).

16    The FCCA judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error and accordingly dismissed the application pursuant to r 44.12(1)(a) of the FCCA Rules.

Application for extension of time and leave to appeal

17    The application to this Court was filed on 19 September 2018. In support of the application, the applicant filed an affidavit annexing a draft notice of appeal containing two grounds (see below).

18    The applicant requires leave to appeal from the decision of the FCCA. Rule 44.12(2) expressly provides that “to avoid doubt, a dismissal under paragraph 1(a) is interlocutory”. An appeal from an interlocutory judgment is not to be brought in the Federal Court “unless the Court or a Judge gives leave to appeal” under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

19    In circumstances where leave to appeal is required, the application for leave to appeal had to be filed within 14 days of the date on which the judgment was pronounced on 26 June 2018 (that is, by 10 July 2018), pursuant to r 35.13 of the Federal Court Rules 2011 (Cth) (“Rules”). The application for leave to appeal is therefore 71 days out of time.

Considerations for extending time and granting leave to appeal

20    Rule 35.14 of the Rules provides a discretionary power to extend time to seek leave to appeal: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28].

21    The relevant considerations in deciding whether to grant an extension of time include:

(1)    The reasons for and length of the delay. The Court must be satisfied that it is proper to grant an extension of time, noting the prescribed period is not to be ignored.

(2)    Any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick J.

(3)    The merits of the appeal: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration, Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD at [28].

22    Further, in order for the Court to grant leave to appeal, the applicant must satisfy the Court of the cumulative test set out in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, namely, whether:

(1)    in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)    substantial injustice would result if leave were refused supposing the decision to be wrong.

23    If the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then it would be futile to grant leave to appeal and, accordingly, leave should not be granted: BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230; (2013) 139 ALD 140 at [25].

24    The Minister accepts that there is little prejudice to him if the Court were to grant an extension of time, beyond the public interest in the finality of administrative decision-making. However, as he noted, the absence of prejudice without more is not a sufficient basis for an extension of time.

Merits of the proposed appeal

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

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

First proposed ground of appeal

27    The first ground in the draft notice of appeal contends that the “decision has a judicial error”. The draft notice does not provide any details of the alleged error.

28    The Minister submitted that the FCCA judge was correct to conclude that the grounds before the FCCA were without merit and the applicant has identified no arguable appellable error in the FCCA judge’s reasoning. The Minister submitted that the Tribunal’s findings were reasonably open to it and the Tribunal applied the correct statutory tests in respect of those findings.

29    I have read carefully the Tribunal’s decision and the judgment of the FCCA judge. Having read those materials, I accept the Minister’s submissions. In particular, the FCCA judge correctly rejected the contention that the Tribunal’s decision was affected by an error of law for the reasons given by the FCCA judge.

Second proposed ground of appeal

30    The second ground in the draft notice of appeal asserts that the “decision was incorrect” because the Tribunal used “incorrect information” and was biased against the applicant. On its face, this is a complaint about the decision of the Tribunal rather than the judgment of the FCCA judge.

31    The Minister contended that no such assertion was raised before the FCCA judge and, accordingly, leave would be required to raise this argument in the event that time were extended.

32    Further, the Minister argued that in the absence of any further particulars, this ground is wholly without merit. First, there is no discernible “incorrect information” that was before the Tribunal. The Tribunal’s findings were based on the evidence before it, including evidence given by the applicant and the country information. The choice of country information and weight accorded to it were matters for the Tribunal. Second, the applicant has pointed to no evidence to substantiate the bare assertion of bias on the part of the Tribunal, nor can it be established in the circumstances of this matter on the basis of the Tribunal’s reasons alone.

33    Again, having read the reasons of the FCCA judge and the Tribunal’s decision record, I accept each of the Minister’s submissions. Accordingly, I accept that neither ground in the second proposed ground of appeal has any reasonable prospects of success.

34    I also note that I detected no arguable ground of appeal in the course of reading the FCCA judge’s judgment and the Tribunal decision record.

Delay

35    Once it is accepted that the proposed appeal has no prospects of success, it would be futile to grant the relief sought. Accordingly, it would not be an appropriate exercise of the Court’s discretion to grant the relief sought and it is unnecessary to consider the significance of the delay in this case or the applicant’s explanation for that delay.

Conclusion

36    The application must be refused. Costs should follow the event.

Associate:

Dated:    30 April 2019