Federal Court of Australia

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs, to be assessed if not agreed, including the first respondent’s costs thrown away by reason of the late filing of submissions by the applicant.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicant seeks an extension of time within which to appeal from a decision of the Federal Circuit Court of Australia, delivered on 4 October 2019: DBX18 v Minister for Immigration [2019] FCCA 2831 (primary judgment). In that decision, the primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, dated 16 May 2018. The Authority had affirmed a decision of a delegate of the first respondent, the Minister, to refuse the applicant’s application for a Safe Haven Enterprise visa (SHEV).

2    Before the primary judge, the applicant contended that the Authority had failed to carry out its statutory task of review by asking itself the wrong question namely, whether it was satisfied that the applicant would face a real risk of harm, when it needed instead to ask whether there was a real chance that the applicant would be persecuted for one or more of the reasons in s 5J(a) of the Migration Act 1958 (Cth). It was contended on this point that the Authority failed to consider the possibility that integers of the applicant’s claim that were rejected could have occurred when assessing the claim for protection overall; in circumstances where the Authority’s rejection of various integers of the claim did not appear to be categorical because of its use of phrases such as ‘implausible’ and ‘do not accept’. The primary judge rejected both of these grounds and, in my view, was correct in doing so. The focus of the merits of the appeal, if an extension is granted, challenges the adequacy of the primary judge’s reasons for so rejecting the review application, which are contended to be so lacking as to amount to a failure to properly try the application for judicial review. For the reasons that follow, I do not consider that ground enjoys sufficient prospects of success to warrant the granting of an extension of time. Nor do I consider that the delay has been adequately explained.

BACKGROUND

3    The applicant is a citizen of Vietnam. He arrived in Australia at Christmas Island as an unlawful maritime arrival on 8 May 2013. He claims to fear harm in Vietnam because he and his family follow the Catholic faith. He also fears being imprisoned for departing Vietnam illegally. He claims that Catholics in Vietnam face a lot of problems with the government and that his ability to ‘get a job and survive’ was very difficult. The applicant’s protection claim focused on three separate incidents involving police harassment and intimidation of the applicant at the church he attended and where he participated in various religious activities.

4    On 15 September 2017, he applied for a SHEV which was refused by a delegate on 26 February 2018 and then referred to the Authority in accordance with s 473CA of the Act. The Authority affirmed the delegate’s decision on 16 May 2018. It did not accept that the applicant had been targeted by police in the three incidents he had claimed, nor did it accept that he had an adverse profile with the Vietnamese authorities on the basis of his religion, his position in the church or for any other reason. In so finding, the Authority took into account inconsistencies in the applicant’s version of the facts and other matters it considered to be implausible. The Authority considered all the evidence before it but was not satisfied that the applicant faced a real chance of harm on return to Vietnam. It was also satisfied that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of such return, there was a real risk that the applicant would suffer significant harm.

5    On 12 June 2018, the applicant applied to the Federal Circuit Court for judicial review of the Authority’s decision. The application was heard on 28 August 2019, with the primary judgment being delivered on 4 October 2019.

6    On 30 October 2020 (over 12 months after the primary judge’s decision), the applicant filed an application for an extension of time in which to file a notice of appeal from the decision, accompanied by an affidavit sworn by the applicant.

7    On 16 November 2020, a Registrar made orders preparing the matter for a hearing on 15 June 2021. The applicant, who was represented by a firm of solicitor throughout his application to this Court, failed to comply with the timeframe for filing submissions. By the time ordered for the Minister’s submissions to be filed, the applicant had still not filed any submissions. Nonetheless, the Minister filed submissions on time. The applicant did eventually file submissions and an updated draft notice of appeal which added particulars to the single proposed ground. The delay was explained by the applicant’s counsel having been briefed relatively late in the piece. This in turn led to the Minister necessarily filing replacement submissions. The Minister sought, and is entitled to an order for costs thrown away by the failure in compliance with the directions for the filing of the original submissions.

THE APPLICATION FOR EXTENSION OF TIME

8    Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that any notice of appeal must be filed within 28 days of the decision of the Federal Circuit Court. The applicant is therefore 364 days out of time. Neither party found it necessary in oral submissions to address the principles concerning the grant of an extension of time. They are very well settled. Usually the Court will have regard to the length or extent of delay, the explanation for the delay, any prejudice to the respondents and the merits of the substantive application: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 per Foster J (at [46]-[48]); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 per Murphy J (at [15]-[19]); and Mohammed v Minister for Immigration and Border Protection [2015] FCA 184; (2015) 231 FCR 243 per Perry J (at [15]). Consideration of an extension of time application is a matter of discretion, and although the Court is guided by those general factors above, it is not confined in what it may have regard to in the circumstances of a particular case. Thus, it is important to note the word ‘usually’ in this regard.

9    In relation to the merits of the substantive application, the Court will usually consider whether the substantive application is sufficiently arguable to support the granting of an extension of time. The substantive application should have such prospects of success so as to not render the extension of time an exercise in futility. The Court should not exercise its discretion to extend time, even for a short period, if it is clear the application has no prospects of success, as it is not in the interests of justice to expend the resources of the Court where there is no real prospect of success were an extension of time to be granted. It is not necessary for an applicant to positively establish that the application or appeal will succeed at final hearing. However, the Court needs to examine the grounds and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success.

10    The applicant explains the delay on the basis that he was not aware of the decision of the Federal Circuit Court until 9 April 2020, although there is a suggestion in his affidavit that he may have become aware of the outcome a month earlier than that. He explains that there were delays in obtaining legal representation, including funding for that representation, and difficulty in gaining access to a Vietnamese interpreter and a justice of the peace in immigration detention. It is also said that he was awaiting the outcome of freedom of information requests.

11    These explanations are not compelling. I accept the submission for the Minister that these matters weigh heavily against the grant of an extension of time. It would only be in the circumstances of a strong prospective case that a delay of a year would warrant an extension of time. Particularly when, as here, the explanations provided by the applicant are symptomatic of those faced by many litigants which, although regrettable, are not extraordinary in the sense required for this factor to weigh in the applicant’s favour.

MERITS OF THE PROPOSED APPEAL

12    The applicant seeks to rely on the following amended draft ground of appeal:

The Federal Circuit Court erred in not finding that the [Authority] committed jurisdictional error by constructively failing to exercise jurisdiction, and by failing to carry out its statutory task of review in that it failed properly to try the application for judicial review.

Particulars

a.    The primary judge concluded at [62] that the [Authority] had asked itself the correct questions with respect to both the refugee and complementary protection claims and had “clearly undertook” its statutory task.

b.    The primary judge’s consideration of the application begins at paragraph [49] of the reasons and only relates to the first integer of the Applicant’s claim.

c.    The primary judge’s reasons do not disclose a basis to support the conclusion either that the [Authority] had asked itself the correct questions, or that the [Authority] had clearly undertaken its statutory task.

13    The applicant relies principally on BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 where the Full Court (Perram, Perry and O’Callaghan JJ) held that a judge of the Federal Circuit Court had failed to give sufficient reasons for dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to refuse a protection visa. In that case, the appellant feared harm in Cameroon because of his homosexuality. Significantly, he made a claim that a long term homosexual relationship he had with another person in Cameroon had been uncovered, resulting in the brutal assault of the appellant and the death of his partner. The Tribunal rejected these events, finding it anomalous that information about his assault had not been shared on social media. The Tribunal proceeded to reject the evidence of a number of witnesses attesting to the appellant’s homosexuality, having already rejected a number of his claims. The Full Court held that the judge on review failed to give sufficient reasons for dismissing the application (at [24]-[26]):

24    The appellant, who was unrepresented below, does not appear to have made submissions directed to his grounds of review (bearing in mind that there is no transcript of the argument below). However, the grounds in his amended application raised potential jurisdictional errors by the Tribunal and gave proper particulars. As such, it was incumbent on the primary judge properly to consider whether or not those grounds were made out and to give reasons as an incident of the judicial process in line with the principles recently confirmed in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 (DAO16) at [47] (the Court).

25    There was, however, no real engagement by the primary judge with (relevantly) Grounds 1(b) and 2(c) of the amended application. The reasons merely assert conclusions. For example, to state that “adverse credibility findings were open for the reasons given by the Tribunal” does not explain why the findings challenged by Ground 2 were open and why the challenge to those findings should be rejected. It follows that the primary judge has rejected the grounds of judicial review at such a high level of generality that the basis for his conclusions is not exposed, as was also the case in DAO16 at [48]. Indeed, the primary judge’s reasons do not address at all the alleged failure by the Tribunal to give proper consideration to the evidence of Mr C raised by Ground 1(b) of the application for review.

26    For these reasons, this case is not one in which the primary judge gave reasons for his decision, albeit brief, as the Minister submitted. Rather, we consider that the FCC has failed to give sufficient reasons and to adequately try the appellant’s substantive grounds of judicial review. The fact that the reasons were delivered ex tempore does not mitigate that conclusion: AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 (AXL16) at [21] (Perram J). …

(Emphasis added).

14    The applicant proceeded in written submissions to refer to later parts of the Full Court’s reasons in BZD17 (particularly at [35]-[36]), to the effect that a decision-maker is required to give active intellectual consideration to, or engagement with, the relevant issues and representations put forward by an applicant. The applicant accepted in oral submissions however, that these statements were clearly directed to the identification of jurisdictional error on the part of an administrative decision-maker. The Court is concerned here with whether there is an appellable error in the primary judgment on account of a failure to give sufficient reasons. Though it is likely uncontroversial that a judge will be required to actively engage with the issues of the case, it does not assist in the present analysis to elide the distinction between the realms of merits and judicial review by importing the jurisprudence concerning whether an administrative decision-maker has actively engaged with factual claims or representations, into the analysis of whether a judge has given sufficient reasons for their decision. The tasks of each decision-maker differ greatly, as will the form and content of the reasons they give for their decisions.

15    The applicant found better support for his contentions in Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247, where Bromberg J set out the principles to be applied in considering the sufficiency of a judge’s reasons for decision (at [127]-[128]:

127    At [43] of Carlisle Homes [[2009] FCAFC 31], the Full Court identified three fundamental elements in the obligation to give reasons as follows:

First, the court or judge should refer to relevant evidence and if there is conflicting evidence, reference should be made to both sets of evidence. Secondly, the court or judge should set out the material findings of fact and identify his or her ultimate factual conclusions. Thirdly, the court or judge should provide reasons for making his or her findings of fact and conclusions, and reasons in applying the law to the facts found.

128    It is necessary, however, to bear in mind the following observation made in Devers at [58] and followed by Gray, Marshall and Bromberg JJ in Haros v Linfox Australia Pty Ltd (2012) 219 IR 177 at [31]:

… a judge’s duty to give reasons is not one which requires him or her to examine in detail every issue raised in the proceedings or to record in minute detail the reasons which led to any particular conclusion. It is enough if the judge outlines the facts found and the process of reasoning which led to the ultimate conclusion …

(Emphasis added).

16    During the hearing I raised with the applicant’s counsel the extent to which the nature of the matter before the judge was determinative of the content of the obligation to give reasons, noting that Sklavos concerned a long and contested trial while the present case concerned an application for judicial review. The applicant’s counsel accepted that these principles must be appropriately applied to the particular matter before the judge. That proposition was also expressed by Griffiths J in Sklavos, who, together with Bromwich J, considered that the trial judge in that case had given sufficient reasons, departing from Bromberg J on that point. Relevantly, Griffiths J said (at [180]):

… In my respectful view it is important to note the emphasis which the case law places on the proposition that the adequacy of reasons will depend on the circumstances of the particular case. More specific propositions, such as those set out in Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 (Carlisle Homes) at [43], to which Bromberg J refers in [127], necessarily reflect the particular circumstances of that case. The “three fundamental elements” which were identified and given prominence in Carlisle Homes reflect the fact that the issue of the sufficiency of the trial judge’s reasons in that case turned on a claim that the trial judge had ignored a strong body of evidence. There is no comparable claim here. Dr Sklavos relied on the same evidence in respect of his claims relating to the Disability Standards as he did in his claims concerning direct and indirect discrimination. Application of the three fundamental elements identified in Carlisle Homes must take into account all the relevant circumstances of a case, including the pleadings and how the case was presented.

(Emphasis added).

17    When considering the primary judge’s decision in this case, the applicant’s complaint is as to a failure to demonstrate actual reasoning in support of the conclusions reached despite the length of the decision, which runs for 23 pages and 65 paragraphs. The applicant notes that the first 48 paragraphs of the reasons comprise a procedural history, a paraphrasing of the Authority’s decision, a paraphrasing of submissions before it, both in writing and orally, an extended quotation from case law and an extended quotation from the Authority’s decision.

18    The applicant argues that the primary judge’s substantive consideration does not actually commence until [49] of the primary judgment. Between [46] and [59], the primary judge proceeded to deal only with [16]-[24] of the Authority’s decision. While the applicant has no quarrel with the primary judge’s reasoning in those paragraphs, it is contended that they dealt with only one discrete aspect of the grounds of review in circumstances where the application for review contended broadly that the Authority asked itself the wrong question and thus failed in its statutory task.

19    The applicant takes particular issue with the primary judge’s reasons at [60]-[62] which are said to assert only his Honour’s conclusions without any supporting analysis or explanation. In those paragraphs, the primary judge said:

60.    The Court notes that particulars (c) and (d) of the sole ground of review refer to the complementary protection criterion. For finality, the Court notes that the [Authority’s] assessment of the claims against the complementary protection criterion was also sound.

61.    Having failed to satisfy the Court that the [Authority] did not err in applying the “real chance test”, there was no error in the [Authority] finding that the applicant’s claims did not give rise to a “real risk” of significant harm. The standard of “real risk” and “real chance” is the same: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505.

62.    The [Authority] asked itself the correct questions, both in respect of the refugee and complementary protection assessment, and clearly undertook its statutory task in accordance with the Act.

(Emphasis added.)

20    The applicant points out that these reasons state only that the Authority’s complementary protection assessment (a reference to s 36(2)(aa) of the Act) ‘was also sound’. The applicant asserts that this is a mere assertion without any evidence of engagement. Likewise, the applicant complains about the reasoning at [62], where the primary judge states that the Authority, in respect of both assessments (that is, as a refugee under s 36(2)(a) and the complementary protection assessment under s 36(2)(aa)) ‘asked itself the correct questions’ and ‘clearly undertook its statutory task’. The applicant contends these conclusions do not follow from the preceding paragraphs, but more importantly, says that they are mere conclusions without any analysis.

21    The first conclusion is said to have required a consideration of what were the correct questions to ask, and then an examination of whether the Authority in fact asked those questions. The second conclusion was, in the words of the Full Court in BZD17 (at [25]), the applicant contends, ‘at such a high level of generality’ that it requires a basis for the conclusion. However, both conclusions, the applicant submits, are mere assertions that do not demonstrate any evidence of real engagement.

22    The applicant complains that the primary judge failed properly to consider and actively to engage with the questions before him, which in general terms was whether or not the Authority failed to carry out its statutory task of review.

CONSIDERATION

23    In oral argument, counsel for the applicant accepted his argument in this case was very much a matter of impression. He also accepted that it was certainly necessary for the Federal Circuit Court to carefully evaluate the reasons given by the Authority and relevantly set them out in order to determine the single ground of review that was before it. Such an exercise could not be carried out without properly exploring and detailing the reasons for decision of the Authority. This is particularly so when a judge is considering an application for judicial review. In this regard, and put shortly, the applicant’s main contention appears to be not that the primary judge erred in the way his Honour set out the reasons, at least up to [60], but that his Honour did not do enough in those preceding paragraphs to justify the conclusions reached at [60]-[62].

24    While observing that on the present application the Court is conducting only a prima facie inquiry into the merits of the proposed appeal, it is necessary to set out in some detail the particular ground of review and submissions supporting that ground advanced before the primary judge to explain why the applicant’s proposed appeal on this application does not enjoy sufficient prospects of success to warrant an extension of time.

25    The sole ground of review advanced before the primary judge was as follows:

1.    The Second Respondent, the [Authority] committed a jurisdictional error by constructively failing to exercise its jurisdiction, and by failing to carry out its statutory task of review.

26    This ground was supported by four particulars, the first two of which ((a) and (b)) concerned the Authority’s refugee assessment and contended that it had failed to ask whether there was a real chance of persecution, as prescribed by s 5J(b) of the Act, instead asking whether there was a real risk of harm if returned to Vietnam. The second set of particulars ((c) and (d)), raised a similar complaint about the Authority’s failure to apply the ‘criterion of real risk’ in its complementary protection assessment. It is clear enough from the primary judge’s reasons that his Honour considered and determined the merits of the ground as a whole at [46]-[59], specifically by reference to the first two particulars, and followed that reasoning with a much briefer statement of the conclusions reach on the second two particulars at [60]-[62]. Contrary to the applicant’s submissions, although the reasons at [60]-[62] are brief, they do importantly draw a logical connection between the conclusions therein expressed concerning complementary protection, and the reasoning contained in the preceding paragraphs (at [46]-[59]) focusing on the refugee assessment, which the applicant accepts discharged the primary judge’s obligation. That connection is drawn at [61] as follows and is no doubt correct:

Having failed to satisfy the Court that the [Authority] did not err in applying the “real chance test”, there was no error in the [Authority] finding that the applicant’s claims did not give rise to a “real risk” of significant harm. The standard of “real risk” and “real chance” is the same: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505.

(Emphasis added.)

27    In oral submissions the applicant sought to characterise the primary judge’s reasoning at [46]-[59] as dealing with only the ‘narrow point’ concerning the Authority’s reasoning at [16]-[24]. This characterisation is unfounded and ignores how the case was put before the primary judge. As his Honour’s recording of the applicant’s submissions reveals (at [40]-[43]), the case was argued seemingly exclusively on the basis that the Authority’s error was contained in [16]-[24] of its decision. The argument put was that the Authority’s use of equivocal (as opposed to categorical) phrases such as ‘do not accept’, ‘implausible’ and ‘doubt’ at [16]-[24] of its decision required the Authority to engage in a further speculative analysis by asking ‘what if I’m wrong’ in order to faithfully apply the ‘reach chance’ test. Indeed, the primary judge (at [42]) recorded the gravamen of the applicant’s contention before him as follows:

In concluding, Mr Walker stated:

… it’s simply my submission that if the assessor doesn’t categorically indicate that the factual claims are rejected, then he’s obligated to move into the realm of speculation…

(Italics in the original)

28    Contrary to the applicant’s contention on this application, consideration of the Authority’s reasons at [16]-[24] was not a narrow issue, rather it was the entire basis of the applicant’s case as argued before the primary judge. The tender by the applicant of a supplementary bundle containing both parties’ written submissions before the primary judge confirms that his Honour faithfully recorded the applicant’s submissions which focus all of their attention on the Authority’s reasoning at [16]-[24]. Significantly, the primary judge recognised (at [41] and [46]) that the applicant’s submissions ‘expanded upon’ and were ‘not entirely consistent’ with the sole ground of review. No submission appears to have been put that each set of particulars should have been separately considered or could stand independently of each other. To the contrary, they were not distinguished at all in the submissions, the case being argued entirely on the question of the adequacy of the Authority’s analysis at [16]-[24].

29    The primary judge quite rightly identified the significant (if not total) overlap between the contended errors in relation to both the Authority’s refugee assessment and complementary protection assessment; they were both dependent on the characterisation of the Authority’s factual findings at [16]-[24], the purportedly equivocal nature of those findings, and whether that required the Authority to undertake a further speculative analysis. For the reason his Honour gave at [61], the contentions in relation to the complementary protection assessment failed for the very same reasons given at [46]-[59] for why the contentions concerning the refugee assessment failed. The observations of Griffiths J in Sklavos are apposite in this regard (at [181]):

An important feature of the proceedings before the primary judge here was the extensive overlap between Dr Sklavos’s claims of direct and indirect discrimination and his claims regarding contraventions of the Disability Standards. I will return below to address the extent to which those claims, as pleaded and argued below, raised different issues and the significance of any such differences to the primary judge’s obligation to give sufficient reasons. It is evident, however, from the structure and content of the primary judge’s reasons, that she proceeded on the basis that her comprehensive reasons and findings which were adverse to Dr Sklavos in respect of his claims of discrimination were also determinative of his claims concerning the Disability Standards. …

(Emphasis added; see also Bromwich J’s reasons at [215] in Sklavos)

30    What the reasoning of the primary judge also does is to illustrate the way in which the Authority engaged with the issues before it. The detailed recitation of the reasoning process was in itself a means of demonstrating and recording the fact that the Authority had engaged correctly in the process with which it was tasked. There is no basis to impugn his Honour’s reasons simply because a substantial portion of the reasons are directed to recording the relevant parts of the decision on review. As noted, it was necessary to draw attention, in some detail, to the reasoning process of the Authority in order for the primary judge himself to consider the contentions raised as against the Authority.

31    The very process of setting out a substantial body of the reasoning process was directed to exploring and illustrating the question of whether or not the Authority had adequately engaged with the function it was required to discharge. Read as a whole, it is clear that the Federal Circuit Court carefully considered and engaged with the submissions advanced by the applicant. The Federal Circuit Court adequately explained in its reasons, its conclusion for rejecting the argument. His Honour considered the specific paragraphs that were impugned by the applicant and, in doing so, identified and emphasised particular portions of the reasoning of the Authority and the level of satisfaction expressed by it in relation to those findings. His Honour held, consistently with authority, that categorical rejection of a claim was not required and it is sufficient on review of the Authority’s decision as a whole to form a view whether or not the Authority had any real doubt that the alleged past events actually occurred.

32    The primary judge discussed the relevant findings made by the Authority in a way that explained his conclusion as to why the Authority’s reasons sufficiently demonstrated that it did not accept the claimed events had occurred. His Honour concluded (at [49]) that the applicant had adopted an unduly narrow approach which focussed on the interpretation of isolated statements in the Authority’s decision and that overall, the applicant was taking an overly semantic approach to the decision (at [58]). Setting out the Authority’s decision in such detail was the very basis upon which it was demonstrated that the applicant’s approach was in fact ‘unduly narrow’ and ‘semantic’.

33    Reviewing the decision of the Federal Circuit Court as a whole, no error is demonstrated in the way the primary judge expressed his conclusions, or the reasoning giving rise to those conclusions.

CONCLUSION

34    In light of the absence of error at an impressionistic level and the considerable delay in pursuing this application, the application for an extension of time must be refused with costs, including the costs thrown away by reason of the late submissions of the applicant.

Associate:

Dated:    4 August 2021