FEDERAL COURT OF AUSTRALIA

DEC16 v Minister for Immigration and Border Protection [2019] FCA 1285

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application for an extension of time within which to appeal from a decision of the Federal Circuit Court (the FCC). By that decision, the FCC dismissed the applicant’s application for judicial review of a decision affirming a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant her a protection visa.

2    By orders made on 18 May 2018, the hearing of the application was adjourned pending the determination by the High Court of the appeals in CQZ15 v Minister for Immigration and Border Protection [2018] HCATrans 79, BEG15 v Minister for Immigration and Border Protection [2018] HCATrans 80; and Minister for Immigration and Border Protection v SZMTA [2018] HCATrans 34. These appeals considered the circumstances in which a failure to disclose a certificate issued under s 438 of the Migration Act 1958 (Cth) (the Act) (and its equivalents in Part 5 of the Act, namely, ss 375A and 376) may constitute a jurisdictional error. Judgment was delivered in each of those matters by the High Court on 13 February 2019: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 (SZMTA (HCA)).

3    The applicant did not file written submissions pursuant to the timetabling orders of the Registrar made on 13 December 2017. The Minister filed and served an outline of submissions on 16 May 2018 and a supplementary outline of submissions on 5 August 2019, with the latter addressing the application of the principles enunciated in SZMTA (HCA) to the present case.

4    The applicant did not attend the hearing in person. However, the Court was able to contact her by telephone and she made submissions with the assistance of an interpreter in the Mandarin and English languages for an adjournment and in support of her application for an extension of time. For the reasons I explain below, I refused her application for an adjournment.

5    For the reasons set out below, the application for an extension of time must be dismissed.

2.    THE APPLICATION FOR AN ADJOURNMENT

6    The applicant made an oral application for an adjournment at the hearing on the basis that she was unwell with a sore throat and had had a temperature the previous day. She also relied upon a medical certificate dated 12 August 2019 which certified that she is receiving medical treatment and “will be unfit to continue her usual occupation” from 13-14 August 2019. In addition, the applicant said that she wanted to have time to see if she could obtain a lawyer but that she had no funds to do so and that she got the medical certificate hoping that she could prepare her case.

7    The application for an adjournment was opposed by the Minister.

8    I refused the application at the hearing for a number of reasons. First, the medical certificate did not establish the applicant was unfit to attend court and make submissions. Further, it was apparent that the applicant was able to make detailed submissions, as she in fact did over the telephone. Secondly, this matter has already been the subject of substantial delays including as a result of awaiting the decisions of the High Court in the appeals to which I have referred. Thirdly, the applicant has had ample time within which to engage a lawyer if she so wished. Furthermore, if the applicant lacked the funds to engage a lawyer, there was no suggestion by her as to whether she would be able to obtain funds and if so, how long that would take. Fourthly, there was no suggestion that the applicant had been unaware of the hearing date and time. To the contrary, the Minister’s solicitors had sent a letter to the applicant by email and express post on 5 August 2019 confirming the hearing which also stated “You are required to attend court on this occasion. If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.” The letter also gave telephone and email contact details for the lawyers with responsibility for the case for the Minister. However, the Minister’s legal representatives were not advised before the hearing that the adjournment application might be made. Finally, as the Minister submitted, the application was without merit. In this regard, I note that the applicant did not make submissions before the FCC but said that she made the application for judicial review in order to stay in Australia. Nor had the applicant made any attempt prior to the hearing on the application for an extension of time to prosecute her application for an extension of time.

3.    BACKGROUND

9    The applicant, who is a citizen of Malaysia, applied for a protection visa under the Act in September 2015. She claimed to fear harm from drug dealers if returned to Malaysia on the ground that she had rejected pressure from the drug dealers to deal in drugs and reported this to the police. She said that this caused the drug dealers to begin tracking and threatening her. She said that she feared that she might be sold to a brothel for revenge or a body organ market for revenge, that the police could not protect her, and that the drug dealers had connections inside the police system.

10    A delegate of the first respondent, the Minister, decided to refuse to grant the applicant a protection visa on 25 January 2016. The decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 30 September 2016. Based upon the applicant’s passport, the Tribunal accepted that the applicant is a citizen of Malaysia and that her identity is as she claims it to be (Tribunal reasons at [13]). However, the Tribunal found that the applicant’s claim to have been pursued by drug dealers in Malaysia was confined to a number of simple and unsubstantiated assertions, describing her written evidence as “devoid of circumstantial detail” and her oral evidence as “notably vague about most elements of the alleged threats and pursuit …” (Tribunal reasons at [16]). As such, the Tribunal was not satisfied as to the truth of her claims to fear harm.

11    The applicant applied for judicial review of the Tribunal’s decision in the FCC, which was dismissed. The application did not specify any grounds and no amended application was filed by the applicant despite the grant of leave for her to do so (FCC reasons at [1]). Further, when asked by the primary judge to identify her complaint about the Tribunal’s decision, the applicant apparently replied “that she had no complaint about the Tribunal’s decision; that she filed the application in the Court simply to stay in Australia because she could not go back to Malaysia” (FCC reasons at [2]). Despite observing that this was, on one view, a clear indication that the proceeding was an abuse of process, given that the applicant was unrepresented the primary judge nonetheless considered the material before the Court and gave reasons as to why the application should be dismissed in any event.

12    In this regard, the primary judge held that:

7. As I have observed the applicant raised no complaint about the Tribunal’s decision and I can see none in its reasons. In particular, I note that the Tribunal’s reasons turned upon its findings of fact which, in turn, were based on its assessment of the applicant’s evidence and claims which were made in an unexceptional way. In terms of procedure, the applicant was given the opportunity to attend a hearing conducted by the Tribunal in accordance with s.425 of the Migration Act 1958 (Cth) (Act), and was given particulars of information that the Tribunal considered would be the reason, or part of the reason, for its decision.

8. Subject to one matter, to which I will come to in a moment, I can see no procedural difficulties or error made by the Tribunal. …

13    The further matter considered by the primary judge concerned a certificate before the Tribunal purportedly given under s 438 of the Act which the Minister brought to the attention of the Court. The primary judge explained that “[t]he certificate certifies that sub-s.438(1)(a) of the Act applies to information in folio 55 in CLF2015/59005 and explains that the disclosure would be contrary to the public interest because the information contained in it, related to an internal working document and business affairs” (FCC reasons at [8]). The primary judge found that the Minister correctly conceded that it was not valid. His Honour held that it did not give rise to any jurisdictional error or that even if it did, he would refuse relief in the exercise of discretion. He explained his reasons as follows:

10.    The reason for both of those conclusions is that even though it appears that the Tribunal did not bring the existence of the certificate to the attention of the applicant, the Tribunal did not in any way, appear to rely upon it, or act upon it, in the manner mentioned by Beach J in MZAFZ [[2016] FCA 1081; (2016) 243 FCR 1]. In any event, even if the applicant had been given the opportunity to see the certificate and make submissions about it, or indeed to see the documents underlying the certificate, it could not have made any difference to the outcome of review.

11.    The document in question is an identification test which relates to a test conducted apparently on 12 October 2015 concerning checks made by an officer of the Department of the identifiers concerning the applicant. The applicant’s identification was never an issue before the Tribunal, it having been accepted by the delegate, and nothing in the document would in any event, have undermined the acceptance of her identity. Rather, it would have affirmed that acceptance and thus, been favourable to her.

4.    PRINCIPLES GOVERNING THE GRANT OF AN EXTENSION OF TIME

14    Rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) requires a notice of appeal to be filed and served within 21 days after the date on which judgment below was pronounced or alternatively, on or before a date fixed by the court below. Final orders were made in the Court below on 17 October 2017. There having been no other date fixed within which an appeal might be instituted, the time limit for making the application ended on 7 November 2017. Accordingly, as the applicant’s application was lodged on 16 November 2017, an extension of nine days is required.

15    The considerations relevant to determining 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 substantive merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. The Minister did not contend that he would suffer any prejudice if the extension were granted and accepted that the delay was short. The issues ultimately turn on whether an appeal would have any prospects at all.

16    In this regard, in considering the merits of the proposed appeal, the draft grounds of judicial review 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 v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).

17    In addition, it is also potentially relevant that, while ex tempore (contemporaneous oral) reasons were given at the FCC hearing on 17 October 2017, the written reasons were published only on 30 November 2017. As a result, the applicant did not have written reasons available to her until after the appeal period had expired and indeed not until two weeks after she lodged her application for an extension of time.

18    As has elsewhere been observed, this is an undesirable state of affairs and is readily avoidable. As the Full Court recently held in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (Perram, Farrell and Perry JJ), “FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.” On balance, therefore, if the grounds have any reasonable prospects of success, I would grant the application for an extension of time in all of the circumstances notwithstanding the absence of any evidence from the applicant explaining the reasons for the delay.

5.    CONSIDERATION OF THE APPLICATION FOR AN EXTENSION OF TIME

5.1    The proposed grounds of appeal

19    The principal question for the reasons set out above is whether the proposed grounds of appeal have any merit or whether it would be futile to grant the extension of time within which to appeal and therefore not in the interests of justice to do so.

20    By her draft notice of appeal, the applicant identifies the following proposed grounds of appeal:

1.    The Tribunal refused me without enough evidence.

2.    AAT has denied my application without adequate reasons for the finding of a fact.

3.    The interpreter’s translation and explanation was unclear and the working attitude was not patient.

21    First, as formulated, grounds 1 and 2 seek to challenge the decision of the Tribunal and do not identify any error in the decision by the Court below. Yet it is necessary on an appeal to demonstrate that the FCC erred in dismissing the application for judicial review of the Tribunal’s decision.

22    Secondly, even if the proposed grounds of appeal are read as alleging that the FCC fell into error in failing to find that the Tribunal erred in the respects set out in the draft notice of appeal, the proposed grounds of appeal fail to specify the nature of the errors allegedly committed the Tribunal. Nor were these grounds elaborated upon by the applicant in oral or written submissions. As such they do not disclose any arguable case of jurisdictional error: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) (applying WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Lucev J) and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (Siopis J)).

23    Thirdly and in any event, as to proposed ground 1, it lay upon the applicant to satisfy the Tribunal of her claims and not upon the Tribunal to have “enough evidence” to reject them. As to proposed ground 2, it is apparent on the face of the Tribunal’s decision that it gave adequate reasons for its decision in accordance with s 430 of the Act. This ground also therefore lacks any merit. Proposed ground 3 is equally without merit in circumstances where there is no suggestion that the applicant raised any issue in the Tribunal or the FCC about the quality of the interpreting and has led no evidence of any errors in interpreting.

24    Fourthly, I am unable to discern any error in the reasons of the primary judge. As his Honour held, the Tribunal affirmed the delegate’s decision on the basis of identified deficiencies in the applicant’s evidence which led it to find that it was not satisfied as to the truth of her claims. Nor is any failure to comply with the statutory requirements of procedural fairness evident. To the contrary, the description of the hearing before the Tribunal set out in its reasons at [11] demonstrates that the Tribunal put its concerns about the applicant’s evidence to her and gave her an opportunity to answer those concerns. Furthermore the Tribunal extended an opportunity to the applicant to make further submissions after the hearing regarding her delay in leaving Malaysia following the alleged threats, this being one of the matters which troubled the Tribunal and which it had raised with her at the hearing (Tribunal reasons at [12]).

25    In the fifth place, by her affidavit in support of the application for an extension of time, the applicant contends that she witnessed the experience of being persecuted in Malaysia, that the evidence which she gave in the Tribunal and before the Magistrate (which I take to be a reference to the FCC) is true, and that she wants to have her case reviewed “by justice of law”. It is therefore clear that the applicant’s real complaint is that the Tribunal did not accept the truth of her evidence, uphold her claims, and grant her the visa. While it is understandable that the applicant wishes to challenge the merits of the Tribunal’s decision, neither this Court nor the FCC has jurisdiction to entertain such a challenge. The Migration Act vests the power to decide whether a person is entitled to a visa relevantly in the Tribunal and not in the Court. The Court can interfere only where the Tribunal makes a decision which is not lawful under the Migration Act, that is, where a jurisdictional error is established.

5.2    Is it arguable that the primary judge erred in holding that the Tribunal’s handling of the s 438 certificate did not reveal jurisdictional error?

26    Applying the principles enunciated by the High Court in SZMTA (HCA), nor could any jurisdictional error arise by reason of the non-disclosure of the s 438 certificate because the document the subject of that certificate could not have had any material impact on the issues before the Tribunal. The document, as the primary judge found, related only to the question of the applicant’s identity which the Tribunal accepted, and lacked any connection to her claims to fear harm. In those circumstances, the applicant could not point to any practical injustice which she suffered by reason of the non-disclosure. As the Minister submitted, it cannot be said that she was denied an opportunity to make submissions on any matter that would have “realistically” made a difference to the outcome of the Tribunal’s decision: SZMTA (HCA) at [50]. It follows that any challenge to the primary judge’s finding that the Tribunal did not fall into jurisdictional error in its treatment of the s 438 certificate issue has no reasonable prospects of success.

5.3    Do any of the new issues raised by the applicant at the hearing have any merit?

27    Finally, at the hearing the applicant raised a number of new matters as follows.

(1)    She had provided evidence to her lawyer about why she had delayed in coming to Australia after obtaining her visa in Malaysia, being one of the concerns about her claims which had worried the Tribunal.

(2)    She let a lawyer prepare the case for her and did not know what was included. He did not attend the FCC hearing but told her that she did not have to do anything at the FCC hearing except turn up. The lawyer ran away and she could not get in touch with him. She felt it was very strange and was confused but did not explain any of this to the FCC judge.

28    The applicant accepted that her concerns set out at (1) above were not raised before the FCC, and no explanation was given as to why she had not done so. She indicated that she might wish to lead evidence in this Court on the issue. However, as I explained at the hearing, on an appeal, the applicant must show error in the primary judge’s decision. An appeal is not an opportunity to run a new case on fresh evidence which could have been led at trial: Coulton v Holcombe (1986) 162 CLR 1. No arguable case can be raised that the primary judge erred in not considering a matter which was not in issue before him and on which no evidence had been led.

29    As to (2) above, the applicant also accepted that she had not raised any of her concerns about her lawyer with the primary judge. Furthermore, there is no suggestion that the applicant was at any time represented by a solicitor on the record in the FCC, and the judgment below records that she appeared unrepresented. In those circumstances, there is no arguable case of a breach of procedural fairness before the primary judge. It is apparent from the primary judge’s reasons that the applicant was given leave to file an amended application for review in advance of the hearing in the FCC given that her application did not identify any grounds, and that she appeared before the primary judge and was given the opportunity to make submissions in support of her application for review.

6.    CONCLUSION

30    For these reasons, any appeal would not enjoy sufficient prospects of success to justify the grant of an extension of time. The application for an extension of time within which to appeal should be dismissed with costs.

Associate:

Dated:    16 August 2019