FEDERAL COURT OF AUSTRALIA

ELS17 v Minister for Immigration and Border Protection [2020] FCA 94

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicants are to 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

DERRINGTON J:

Introduction

1    The application before the Court is for an extension of time in which to appeal a decision of the Federal Circuit Court of Australia (FCC) given on 18 June 2018: ELS17 & Anor v Minister for Immigration & Anor [2018] FCCA 1674. The first applicant is ELS17 and the second is his wife, ELT17. The FCC had dismissed their application for review of the decision of the Administrative Appeals Tribunal (the Tribunal) of 7 September 2017, which affirmed the decision of a delegate of the Minister made in May 2016 to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2    Although the FCC’s decision was made on 18 June 2018, when the orders were pronounced, the written version of the primary judge’s ex tempore reasons did not become available until 18 October 2018. Nevertheless, no appeal was filed in relation to that decision within 28 days after the delivery of reasons: cf r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules). On 30 July 2019, the applicants filed an originating application seeking an extension of time in which to appeal. That application, however, does not contain the particulars required by the Rules; it is merely a signed copy of the pro forma document which is annexed to the Rules. The only indication of the applicants’ complaints appears in the draft notice of appeal which identifies the intended grounds of appeal as being:

Grounds of Appeal

1.    Jurisdictional errors were made.

    The Tribunal member refused me to provide evidence in support of my claims. If the Tribunal member considered my case more carefully, I should be given a chance to confirm whether I could provide relevant evidence or not.

    Whether relevant information had been disclosed to me was not considered.

2.    The Tribunal handled my case unfairly.

    The Tribunal refused to consider some of my claims without substantiated grounds.

3    The affidavit in support of the application, which was sworn by ELS17, does not illuminate the basis of the applicants’ complaints either. It provides, relevantly:

1.    I am the First applicant.

2.    There exist jurisdictional errors in my case.

3.    I was not aware that I could appeal to Federal Court.

4.    All the statements in the application are true based on my knowledge.

4    When the matter was called on for hearing, the applicants failed to appear. The matter was called three times outside of the Court and still there was no appearance. The Court officer conducted a search of the other courts on level 7 of the Federal Court building, but was unable to locate any person answering the applicants’ description.

5    Ms Reid, the Minister’s legal representative, informed the Court that she, as the solicitor in charge of the matter, had sent documents and emails to the applicants informing them of the time and place for the hearing. Ms Reid further informed the Court that she had not received a reply on any occasion. It is also relevant that the applicants did not file any written submissions in the Court in support of their application, despite having been directed to do so by a Register of the Court.

6    In the above circumstances, Ms Reid sought an order that the application for an extension of time in which to appeal be dismissed under r 35.33(1)(a)(i) of the Rules. Although in seeking such an order there is no requirement for the Minister to establish that the applicants have no merits to their proposed appeal, given the careful submissions which were filed on behalf of the Minister, it is not inappropriate to consider the substance of any possible appeal.

Background

7    The applicants are citizens of Malaysia.

8    Relevantly, the applicants arrived in Australia on 29 April 2013 on UD-976 Visitor Visas, and remained in Australia unlawfully after the expiry of their visas on 29 July 2013. The evidence suggests they made their application for protection visas on 14 May 2015. A delegate of the Minister refused to grant the protection visas on 30 May 2016. On 8 June 2016, the applicants applied to the Tribunal for a review of that decision. The long delay between their arrival in this country and the making of the application raised significant concern for the Tribunal, and it is not unfair to say that, as the Tribunal found, the applicants were not able to provide any adequate explanation for that delay. At its highest, ELS17 said that they did not have money at the relevant times and subsequently learned that they might be entitled to refugee status.

9    The application for the protection visa identified the following grounds on which the applicants relied:

(1)    The applicants were forced to join a cult;

(2)    The applicants will face harm and will be threatened and kidnapped if they return to Malaysia; and

(3)    ELS17 was forced to drink holy water and, if he did not do so, they (being members of the cult) threatened to hurt ELT17. Although ELS17 sought to fight back, he was unable to do so, after which they hit ELT17 and threatened her with a knife.

10    There is no need to consider these grounds in detail as the applicants disavowed those claims at the Tribunal hearing. ELS17 said that he was unware of what grounds were put in the visa application which, he claims, had been prepared by his migration agent.

11    The substance of the applicants’ claim to refugee status now appears from paragraph 27 of the Tribunal’s written reasons which provides:

The Tribunal asked the applicant what harm he and his wife suffered in Malaysia. He stated that ‘they suffered from this so-called religious stuff’. He stated that having returned from [another country][in] December 2012 they went to a shopping centre to buy clothes. While they were there they met a neighbour from the village who they had not seen for a long time and had a chat. She said something about inviting them to have food together. She was very insistent. He was embarrassed to say no so they went along. They arrived at her home at around 5-6pm. By the time they got there they felt something was wrong. When they entered the room, about seven to eight people were reciting verses. He asked his neighbour what happened. She said sorry, she doesn’t know. They wanted to leave but those people stopped them from leaving. The Tribunal asked the applicant in what way they were stopped. He stated that they blocked the door and asked them to join the church. The people threatened to kill his family. These people said the end of the world will come soon and that the applicants should give them all their money and property. He stated that after one day the applicants told these people they need to go home so they offered their ID cards. After they gave their cards and contact details to them they were able to go home.

The decision of the Tribunal

12    The Tribunal rejected the factual substratum of that claim on the basis that it was not satisfied by the evidence adduced by the applicants. That evidence consisted of their oral testimony which the Tribunal concluded was not credible. This was based on its inherent implausibility and the significant inconsistencies in the applicants’ evidence. The Tribunal’s reasons identify that it put to each of the applicants its concerns as to the veracity and credibility of their evidence. Ultimately, it concluded that the evidence did not establish any grounds on which the applicants might have a real chance that they will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act, were they to return to Malaysia now, or in the reasonably foreseeable future. On that basis it was concluded that they did not have a well-founded fear of persecution. For similar reasons the Tribunal was not satisfied that there was a real risk that they will suffer significant harm if they returned to Malaysia now or in the reasonably foreseeable future such that there was no basis for granting a visa based on the complementary protection grounds.

Decision of the FCC

13    The primary judge considered at length the reasons of the Tribunal and its grounds for refusing to alter the delegate’s decision. His Honour observed that there were great discrepancies between the written application and the applicants’ oral evidence before the Tribunal. His Honour also assayed the vagueness of, and inconsistencies in, the version of events advanced by each applicant. Those inconsistencies included the length of time the husband and wife said they were held by their captors, the events which occurred over the duration of the captivity, how they came to be released, and what occurred when they subsequently encountered their erstwhile captors. Before the primary judge it was submitted that the Tribunal had ignored evidence which they had provided in support of their case and that they were not allowed to make further comment in relation to the Tribunal’s concerns. The primary judge held that such a submission was not supported by the facts as they were each offered numerous opportunities to comment on the concerns raised by the Tribunal and were given plenty of time to do so.

14    It was also put that the Tribunal had failed to consider the efficacy of Malaysian law enforcement officers who might be called upon to protect the applicants. The primary judge found that, even if the alleged inadequacy of law enforcement had been evidenced before the Tribunal, given the Tribunal did not accept the applicants’ factual assertions regarding threats to the applicants’ wellbeing, there was no need for them to seek the protection of law enforcement officers. Consequently, he concluded that ground had no merit.

15    The third ground relied upon before the primary judge was that the Malaysian Government would fail to provide the applicants with protection because they were Chinese Malaysian and this was not properly considered by the Tribunal. However, as the primary judge observed, that ground was irrelevant in circumstances where the factual assertions underpinning the claimed fear of persecution had not been accepted. In any event, no such claim had been advanced to the Tribunal.

16    The fourth ground advanced concerned an alleged inadequacy of attention directed by the Tribunal to the complementary protection grounds. The primary judge also rejected this ground on the basis that the Tribunal had not accepted the factual foundation of the applicants’ claim and on that basis the claim for protection under s 36(2)(aa) of the Act was unsustainable.

17    To the extent the applicants submitted that they ought to have been given further time to obtain additional evidence, the primary judge correctly observed that the applicants had failed to identify any evidence which they might have obtained had they been given the opportunity to do so. Indeed, no evidence was advanced to the FCC identifying the further information, or the type of further information, which might have been available.

18    In the result, the primary judge concluded that nothing had been shown which would indicate the existence of a jurisdictional error in the decision of the Tribunal and the application was dismissed.

Application to this Court

19    As indicated above, the “grounds” identified in the draft notice of appeal are vague. They do not identify any purported error by the primary judge and on that basis are unsustainable. Nevertheless, it is appropriate to consider that the applicants intend to argue that the primary judge erred in failing to detect the errors which are alleged to exist in the Tribunal’s decision.

Principles relevant to an application for extension of time

20    In order to succeed on an application under r 36.05 of the Rules it is generally incumbent upon an applicant to establish a reason for the exercise of discretion in their favour. Usually on such an application this Court will consider:

(a)    the extent of any delay;

(b)    any explanation for the delay in instituting an appeal or an application for an extension of time;

(c)    any prejudice to the respondent(s); and

(d)    whether there is any merit in any of the proposed grounds of appeal.

21    Those considerations are not exhaustive and whether an extension ought to be granted will depend upon the circumstances of the particular case: CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101 at [27]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; AXM15 v Minister for Immigration and Border Protection [2018] FCA 1186 at [8]. It can be generally acknowledged that the weight carried by each of the above considerations will vary from case to case. Further, generally speaking, where it is shown that a proposed ground of appeal has some merit to it, that factor will assume not insignificant weight in the discretion’s exercise.

Extent of the delay

22    In this case, the lapse of time between the decision of the primary judge on 18 June 2018, and the filing of the application for an extension of time on 30 July 2019, was in excess of one year. Even if allowance was given for the fact that the written versions of the reasons for the decision did not become available until 18 October 2018, a lapse of time in excess of nine months still remains. On any view that is significant in the context of a 28 day limit.

Explanation for the delay

23    As best as might be gleaned from the affidavit material filed in this Court, the failure of the applicants to institute an appeal within time was their claimed lack of knowledge of any right to do so. The respondent rightly submits that this explanation is not a compelling one. Whilst the applicants’ lack of knowledge may explain the failure to institute the appeal, it is not “an acceptable explanation” for it. The regime provided by the Act, the review procedures before the FCC and the appeals to this Court, provide a comprehensive range of opportunities for disappointed applicants to ventilate their grievances. The content of that regime is freely available and the time limitation periods incorporated into it have been determined by the legislature as appropriate in the protection of individual rights and liberties. Those limitation periods and the rationale for their existence must be accorded respect. It would be inappropriate to pay lip service to them by exercising the discretion to extend time in circumstances where an applicant merely claimed ignorance of the time periods in which they must act.

24    In this case all that is said is that there was an unawareness of the right to appeal. No attempt was made to identify any steps taken by the applicants to inform themselves of their rights consequent upon the FCC decision. It is well known that there are numerous legal aid organisations which will provide free advice in relation to migration matters and nothing has been said as to why the applicants failed to take advantage of those services. It follows there is no acceptable explanation for the applicants’ failure to lodge an appeal within the time permitted by r 36.03 and no acceptable explanation as to the failure to make the application for an extension of time in the 12 month period after that period of time elapsed.

Prejudice to the parties

25    The Minister did not identify any particular or specific prejudice consequent upon the failure of the applicants to file an appeal within time and the respondent conceded it would not suffer any prejudice if the extension of time was granted. However, there is some force in the respondent’s submission that the prejudice to the public is a relevant factor to consider. The regime for the determination of visa applications, including the avenues of review and appeal, are part of a deliberately constructed regime. To permit departure from the regime merely for the asking would severely undermine its efficacy. In the circumstances of this case, where there is an absence of any suitable explanation for the applicants’ extensive delay, the granting of extension of time would have the propensity to irretrievably damage the administrative framework for the determination of visa applications.

26    The potential for prejudice to the applicants if time is not extended is axiomatic. However, the amount of such prejudice is dependent upon the merit of the proposed grounds of appeal.

The existence of merit in the proposed grounds of appeal

27    The grounds of appeal in the draft notice of appeal are vague and unparticularised. The failure to particularise a ground of review is itself a sufficient basis to dismiss the appeal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

28    However, taken at their highest, it can be assumed that the grounds in the draft notice of appeal are to the effect that the FCC failed to identify the alleged errors in the Tribunal’s decision. However, even making these assumptions in favour of the applicants the grounds are not sustainable.

29    There is no material in support of the allegation that the Tribunal member refused the applicants the ability to provide evidence in support of their claims. The Tribunal’s reasons show that, in the usual manner, a hearing occurred at which the applicants attended and they provided oral evidence to the Tribunal. They were given every opportunity to provide their evidence and they did not ask for further time and nor did they identify any other potential evidence which might have assisted them with their application. Indeed, even on this application, they have not identified any evidence which might have assisted them in establishing the criteria which needed to be met for the purposes of their application.

30    The second part of Ground 1 seems to suggest the applicants should be given a chance to ascertain whether they could provide relevant evidence or not. That was not something which arose before the Tribunal and nor was it a ground agitated before the FCC. In that respect the learned primary judge could have made no error in failing to detect any apparent procedural breach. Further, on this application nothing has been shown which might suggest the existence of any potential source of information or evidence which might assist the applicants. There was no error by the Tribunal in failing to provide the applicants with sufficient time in which to prepare their case and there is no evidence which might support that allegation. It appears that the hearing occurred after notice to the applicants and the Tribunal’s reasons indicated that it occurred in the ordinary way. In the absence of any omission by the Tribunal to afford the applicants sufficient time to prepare and present their claims, the FCC did not err in failing to detect any jurisdictional error in that respect.

31    The third part of Ground 1 appears to be that information provided by the applicants had not been considered. No particulars of that allegation have been provided and the applicants were not able to make any substantive submission in support of it. There is nothing on the material available to this Court to suggest that the Tribunal failed to consider any relevant information, claim or consideration and no such error was alleged before the primary judge. That being so, this ground also could not succeed.

32    The second ground, to the effect the Tribunal handled the applicants’ case unfairly and refused to consider some of their claims without substantiated grounds, is also unparticularised. No indication is given as to which claims were not considered. The Tribunal considered both the grounds in the written application and the claim for protection as advanced orally before it. The primary judge observed that the Tribunal considered the evidence advanced in relation to the latter, the former having been apparently abandoned. There is nothing on the face of the Tribunal’s reasons to suggest that it neglected its task to consider the claim agitated to it or any claim clearly arising on the material.

33    On the assumption that this vague ground relates to the failure of the Tribunal to consider the inadequacy of the law enforcement authorities in Malaysia, as the primary judge found, the complete answer to that is that the Tribunal disbelieved the factual assertions underpinning the claim for protection with the result that the applicants face no harm in respect of which the protection by the Malaysian police forces would be inadequate.

34    In the result, no error can be detected in the reasons of the primary judge in relation to Ground 2.

Conclusion

35    None of the grounds advanced by the applicants in the draft notice of appeal have any merit or chance of success warranting the granting of an extension of time.

36    It follows that the applicants have failed to identify any adequate explanation for the extensive delay in lodging an appeal or an application for extension of time. On the other hand the Minister will suffer prejudice if an extension is granted, and that there is no merit in the proposed grounds of appeal. Necessarily it follows that there is no basis for exercising the discretion in r 36.05 in favour of the applicants.

37    In any event, in the absence of any appearance for the applicants, the application ought to be dismissed under r 35.33(1)(a)(i) of the Rules.

38    The application must therefore be dismissed.

39    There is no reason why the applicants ought not to pay the Minister’s costs of the application for an extension of time.

Associate:

Dated:    13 February 2020