FEDERAL COURT OF AUSTRALIA

BTR16 v Minister for Immigration and Border Protection [2019] FCA 1068

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs in the amount of $1,756.

3.    The name of the first respondent 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

O’BRYAN J:

Introduction

1    On 2 January 2019, the applicant filed an application for an extension of time within which to appeal from the judgment and orders of his Honour Judge McNab (primary judge) of the Federal Circuit Court of Australia pronounced on 14 November 2018, published as BTR16 v Minister for Immigration and Anor [2018] FCCA 3286 (primary judgment). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 June 2016 refusing to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The application for an extension of time incorrectly referred to r 31.23 of the Federal Court Rules 2011. The application should have been made under r 36.05. I will treat the application as if it were made under the latter rule. In support of the application, the applicant filed an affidavit on 2 January 2019 and a draft notice of appeal.

3    On 31 January 2019, the Court made the following order:

No later than ten (10) business days before the hearing date the applicant file and serve a written outline of submissions upon which the applicant seeks to rely in support of the application, and in support of any appeal were the Court to grant an extension of time and/or leave to appeal, so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to appeal.

4    The applicant did not comply with that order.

5    The applicant appeared at the hearing and addressed the Court briefly on the reasons for the failure to file an appeal within time and the appeal proper. As to the substance of the appeal, the applicant stated only that the decision makers below had not accepted the applicant’s reasons for requiring a protection visa.

6    For the reasons explained below, I consider that the appeal, were it to be allowed, would have no prospects of success. For that reason, there is no utility in granting an extension of time in which to appeal.

Background

7    The applicant is a citizen of Bangladesh. He was born on 3 November 1993 in Narattampur village, Noararkhah District in Chittagong. He is one of eight children comprising six sons and two daughters. His father owned a grocery shop. His father has retired, but his brothers are still employed at the shop. His parents are both alive and still living in Narrattampur. Most of the family live in that village. He was educated to year 5, primary school. He was about 8 or 9 years old when he stopped going to school. He then started working in his family’s grocery shop. His sisters were married away while at primary school; some brothers studied more, others did not.

8    The applicant travelled from Bangladesh to Malaysia in 2007 at the age of 14. His family arranged the travel to Malaysia for him. He claimed that he left his village in Bangladesh because he feared harm on the basis of a land dispute between himself and his neighbours. He claimed that he feared that he would be killed or injured upon returning to Bangladesh. In a statutory declaration dated 19 March 2013, the applicant made the following claims:

(a)    The applicant was a student working in his family's grocery shop. There had been a dispute with their neighbours over land between their properties. The land in question was in the applicant’s name and his neighbours were determined to get the land from him.

(b)    The dispute escalated in around January/February 2007 when there was a confrontation with the neighbours. The neighbours said they would kill the applicant.

(c)    A few days later two boys who pretended to be friends came over to his house and asked his mother where he was. His brother told them to go away.

(d)    After this argument, the applicant was afraid as many people were being murdered in Bangladesh for no reason. About four months later, he fled the village because his family decided it was not safe for him to stay in the country.

(e)    While he has been away, the neighbours kept asking his family where he was and told them that they would find him. His family continued to be harassed until a local Council intervened and, at the time of writing the statutory declaration, the neighbours had, for the previous year, stopped harassing his family.

9    The applicant lived and worked in Malaysia from 2007 to 2012. He arrived in Australia as an irregular maritime arrival on 24 December 2012. On 5 April 2013, the applicant applied for a Protection (Class XA) visa (Protection visa).

10    On 18 September 2014, the applicant attended an interview before the delegate. On 6 January 2015, the delegate refused to grant the applicant the Protection visa. The delegate had concerns about the plausibility and consistency of the applicant’s claims and found them to be lacking in credibility.

Tribunal decision

11    On 12 January 2015, the applicant applied to the then Refugee Review Tribunal (Tribunal) for review of the delegate’s decision. A copy of the delegate’s decision was provided with the review application. The applicant was represented by his registered migration agent throughout the review proceedings.

12    On 14 April 2016, the applicant’s representative provided written submissions to the Tribunal.

13    On 18 April 2016, the applicant attended a hearing before the Tribunal with the assistance of his representative and a Bengali interpreter.

14    At the hearing, the applicant elaborated on his claims. Relevant to one of the proposed grounds of appeal, the applicant gave evidence as to how he came to own the land that became the subject of the claimed dispute with his family’s neighbours: Tribunal’s reasons at [30]-[32]. The applicant said that when his father was ill, all the properties he owned were divided amongst his children (including the applicant's sisters and mother). The applicant was unable to say what illness his father had, however he did note that his father had lost his speech. His father summoned all of the family members to inform them that he wanted to divide the property amongst them. The applicant said that this occurred one or two years before he left for Malaysia, but he could not remember the exact date. The Tribunal asked the applicant why his father divided the property. The applicant responded by saying that his father divided the property when he got ill and that he could not say why. The Tribunal enquired why his father did this, when presumably his family would have inherited the properties in due course in any event. The applicant's response was that his father thought that his eldest brothers might not divide the properties amongst the family. The Tribunal asked the applicant how much land he had acquired. The applicant was not sure but it said it was big enough to build a three-bedroom house. The applicant was asked where the land was situated. He said it was not far from the main house. He said that each of his siblings and his mother received land. He also said that his parents' block of land was transferred to his mother's name.

15    At the hearing, the applicant made an additional claim that, in January 2016, the neighbours who were seeking to take the applicant’s land had come to his family’s home and demanded that the land be handed over to them. They threatened that if the family did not make the applicant return from Australia, they would send the applicant’s brother to gaol. There was then was a violent argument between one of the applicant’s brothers and the neighbours. The brother told them that the applicant was not in the country and asked why they were giving him trouble. The neighbours said they would take the applicant’s brother to gaol to force the applicant to return in order to sign the transfer of land. While this argument was going on, the neighbours called the police. The police arrived and took the applicant’s brother to gaol where he was detained for 13 days. The brother was not charged with any offence.

16    On 11, 16 and 25 May 2016, the applicant’s representative provided further written submissions to the Tribunal.

17    On 18 June 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

18    The Tribunal noted that, by reason of the operation of s 45AA of the Act and reg. 2.08F of the Migration Regulations 1994 (Cth), the application for the Protection visa was taken to have always been an application for a Temporary Protection (Class XD) visa: Tribunal’s reasons at [3].

19    During the hearing, the Tribunal raised a number of apparent inconsistencies in the applicant’s evidence put before the delegate, given in his statutory declaration and his evidence put before the Tribunal, and gave the applicant an opportunity to respond to those matters: Tribunal’s reasons at [55]-[66]. The Tribunal also gave the applicant the opportunity to file a further submission after the hearing to address the matters of concern to the Tribunal, which the applicant took up: Tribunal’s reasons at [68]-[80].

20    Ultimately, the Tribunal found the applicant not to be a credible witness: Tribunal’s reasons at [84]. This was for a number of reasons. First, the Tribunal found that the applicant “frequently professed to having a poor memory” regarding important aspects of his claim: Tribunal’s reasons at [85]. Second, the Tribunal found that aspects of the applicant’s claims were implausible. In particular, the applicant’s claim that his neighbour would be able to seize the land if the neighbour killed the applicant made no sense because the land would revert to the applicant’s family; the Tribunal found that it did not make sense that the applicant’s father would distribute land to his children when he was unwell; the Tribunal also found that it was not plausible that the applicant still feared harm from the neighbour when the last dispute between them occurred in 2007 (save for the recent claimed incident with his brother): Tribunal’s reasons at [86]. Third, the Tribunal rejected the applicant’s recent claim regarding a dispute between his neighbour and his brother, resulting in his brother being detained for two weeks. The Tribunal did not find the account plausible in circumstances where the neighbours had not otherwise contacted the applicant’s family in the period 2008 to 2016: Tribunal’s reasons at [88]. The Tribunal placed no weight on supporting documents produced by the applicant after the hearing, being a purported bail declaration for his brother and the title deed to the applicant’s land, because of the poor quality of the translations of those documents: Tribunal’s reasons at [88]-[89].

21    Having considered the information before it, the Tribunal was not satisfied that the applicant would face a real chance of serious harm on return to Bangladesh. It therefore concluded that the applicant did not satisfy the criterion in s 36(2)(a) of the Act: Tribunal’s reasons at [101]-[102], [105]. Having regard to its anterior findings, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm on returning to Bangladesh and therefore concluded that he did not satisfy the complementary protection criterion under s 36(2)(aa) of the Act: Tribunal’s reasons at [103], [106].

Proceedings in the Federal Circuit Court

22    On 14 July 2016, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. By amended application filed on 12 October 2018, the applicant made the following complaints (errors in original):

The Second Respondent erred, amounting to jurisdictional error, by engaging in irrational, illogical and procedurally unfair reasoning.

Particulars:

The Applicant claimed to have been the victim of persecution by reason of being a member of a particular social group, namely a victim of land disputes in Bangladesh.

In issue before the delegate was whether the Applicant owns the land in Bangladesh. The Applicant in fact owned land under his name in Bangladesh when he claimed to had been subjected to persecution. He further gave evidence to the fact that the land has been given to the Applicant by his father.

The Second Respondent found that the Applicant’s evidence that his father had become ill and decided to divide the land amongst all the family. The Second Respondent concluded this as the Applicant has not claimed or referred this in his earlier statement.

23    The primary judge found that the applicant had not demonstrated that the Tribunal’s findings were illogical in the sense that they lacked a logical or probative basis. The primary judge accepted the first respondent’s submission that the standard of a finding of illogicality was high and extreme illogicality was necessary to make out jurisdictional error, referring to DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at [30] (DAO16): primary judgment at [15]. The primary judge noted that the Tribunal had set out its concerns in a detailed way and that the applicant and his representatives were drawn to the inconsistencies in the applicant’s evidence and were able to respond to those inconsistencies both at the hearing and in subsequent written submissions. The primary judge noted that the Tribunal had referred to the submissions and considered the applicant’s claims as a whole. The primary judge found that the Tribunal’s findings of inconsistency in respect of the applicant’s evidence were open to it. The primary judge also accepted the first respondent’s submission that the Tribunal’s inconsistency findings were not the only basis for its findings in relation to the implausibility of the applicant’s evidence: primary judgment at [16]-[17].

24    The primary judge otherwise found that there was no basis for any finding that the Tribunal had failed to accord the applicant procedural fairness, noting that the applicant was represented at the hearing, filed three post-hearing submissions, all of which were referred to by the Tribunal, and had the inconsistencies identified by the Tribunal put to him to which he was given an opportunity to respond: primary judgment at [18]. The primary judge concluded that there was no jurisdictional error apparent in the Tribunal’s decision or in the manner in which the Tribunal approached its task and accordingly dismissed the application: primary judgment at [19].

Application for an extension of time

25    Rule 36.03 of the Federal Court Rules 2011 requires a notice of appeal to be filed and served within 21 days after the date when the orders or judgments were pronounced. Accordingly, a notice of appeal should have been filed by 5 December 2018, being 21 days after the primary judge pronounced the orders on 14 November 2018. When the applicant filed its application for an extension of time on 2 January 2019, the applicant was therefore 28 days out of time.

26    Under r 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where this are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].

27    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

28    At the hearing, the applicant stated that he received notification on 12 November 2018 that the Federal Circuit Court would deliver its decision on 14 November 2018. The applicant stated that he was unable to attend Court on that day because he had not received sufficient notice. Subsequently, the applicant received a copy of the decision of the Federal Circuit Court on 6 December 2018. I asked the applicant why his application was not filed until 2 January 2019. The applicant stated that he attended the Federal Court on three occasions and on each occasion was given assistance by the Court as to the documentation required to be filed for an appeal.

29    Counsel for the Minister submitted that it was clear that the applicant was aware of the Federal Circuit Court decision from the date of notification on 12 November 2018. Accordingly, there was not a satisfactory explanation for the delay. Nevertheless, the Minister acknowledged that there was no prejudice to the Minister arising from the delay in the present case.

30    In my view, the applicant’s delay is not excessive and is explained, at least in part, by the facts that the applicant does not speak English and is not familiar with the practices of the Federal Court. However, for the reasons explained below, the applicant’s draft grounds of appeal do not establish that the decision of the primary judge is attended by sufficient doubt to warrant an extension of time being granted. Indeed, I consider that the appeal has no prospects of success. It is for that reason that I refuse the application for an extension of time.

The draft notice of appeal

31    Ground one of the draft notice of appeal reproduces the ground of review raised before the primary judge. The contention is that the Tribunal’s reasoning was illogical or unreasonable. The particular focus of the complaint is the rejection, by the Tribunal, of the applicant’s claim that land was given to him by his father when his father was ill: Tribunal’s reasons at [86] and [95].

32    As noted above, the primary judge rejected that contention, finding that the Tribunal’s conclusion was open to it on the evidence before it. In my view, there is no error in the reasoning of the primary judge. Reasonable minds might differ as to the plausibility of the applicant’s claim that his father divided his property amongst his family when he was ill. There may have been personal or cultural reasons why the applicant’s father might have chosen to do this. However, in light of the difficulties with many other aspects of the applicant’s claims and evidence, it cannot be said that the Tribunal’s rejection of the applicant’s claim about distribution of land is illogical or unreasonable. In any event, I do not consider that the Tribunal’s rejection of that aspect of the applicant’s claim was material to the Tribunal’s decision. It was merely one integer among many that caused the Tribunal to conclude that the applicant’s claims lacked credibility. More fundamentally, the Tribunal rejected as implausible the applicant’s claim that if he returned to Bangladesh he would be at risk of physical harm from his neighbours. An error that could not have resulted in a different decision does not give rise to jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [31].

33    By ground two of the draft notice of appeal, the applicant contends that the primary judge erred by applying an incorrect test of illogicality. I reject that contention. The primary judge relied on the principles stated by the Full Federal Court in DAO16 at [30], point (5) that:

A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

34    The principles summarised by the Full Federal Court in DAO16 have been subsequently cited with approval by the Full Court in AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31].

35    The primary judge referred to DAO16 to explain that the task of the Court on review was limited to the correction of jurisdictional error and that the Court’s function was not to review the merits of the Tribunal’s decision. Relevantly, jurisdictional error would not arise if the question of fact to be determined was one on which reasonable minds might differ. Having reviewed the Tribunal’s reasons, I cannot identify any error in the primary judge’s application of DAO16.

36    In my view, the applicant’s proposed grounds of appeal have no prospects of success.

Conclusion

37    In conclusion, as the applicant’s proposed grounds of appeal have no prospects of success, I refuse the application for an extension of time in which to appeal. I will also order the appellant to pay the first respondent’s costs in the amount of $1,756.

Associate:

Dated:    12 July 2019